Brain Injury Awareness Week 2019 is here – #ActionForBrainInjuryWeek #ABIWeek, culminating with #HatsForHeadway on Friday 24th May.
As is often the case, family members can face numerous difficulties as the result of a loved one succumbing to a brain injury – if they no longer have capacity to make decisions for themselves and if the family is not aware of what steps they need to take. Difficulties can arise in relation to medical or financial decisions that need to be made and no-one having legal authority to make these decisions. It is not only the individual who succumbs to a brain injury who suffers the traumatic effects, it can change family dynamics and relationships in an instant. This puts an emotional strain on not only the individual who has suffered the brain injury, but on the wider family at an already traumatic time.
Granting a Power of Attorney
No-one can foresee the future or know whether they will be unfortunate enough to suffer a traumatic brain injury. However, there are steps which can be put in place in order to protect your position as far as you can, whilst you have capacity. A Power of Attorney could be granted. This is a protective document which gives someone you know and trust the legal authority to make decisions in relation to your property, finances and/or personal welfare if you no longer have capacity to do so yourself. The Power of Attorney is granted whilst you have capacity to understand the nature and extent of the document. It is a protective document for the future and may never be required. If it is required, you decide who will deal with matters on your behalf. You can also determine when and how the document is “triggered”.
What happens if I don’t have a Power of Attorney?
Should you lose capacity without a Power of Attorney document in place, no-one has legal authority to make decisions on your behalf. Contrary to common misconception, your spouse/civil partner/cohabitee/child/sibling/parent (unless you are under 16) does not have automatic legal authority in these matters should you be unable to make your own decisions.
To be given authority, a friend or family member would require to apply to the court seeking authority to make decisions on your behalf. This can be a long, and sometimes expensive, process (although Legal Aid may be available and you should check with your solicitor before progressing matters as to whether you are entitled to Legal Aid). Should you require someone to make decisions on your behalf and no family member or friend makes such an application to the court, the local authority is under an obligation to make an application. This could be for the appointment of the Chief Social Work Officer to make decisions about your welfare or an independent solicitor to manage your finances. If you require urgent medical treatment and you have no Attorney, a doctor can sign a certificate authorising treatment.
Attorneys and Guardians
You may be entitled to funds under the Criminal Injuries Compensation Scheme or a personal injury claim. You may not have the capacity to manage such funds and it may be appropriate for an Attorney or Guardian to manage those funds on your behalf.
Should you require any further information or advice about granting a Power of Attorney, making a guardianship application or the availability of Legal Aid for guardianship applications please contact a member of our Private Client Team who will be happy to assist.