Pictured above: Fiona Debney
Last week's case involving former ballet dancer Elaine McDonald
and her request for overnight care assistance has triggered a mix
of highly charged reactions amongst lawyers and charities for the
old and infirm, but in particular underlines the importance of
foresight and planning for old age or illness.
This is the view of Fiona Debney head of the wills, trusts and
probate team at law firm Challinors, who says Elaine McDonald's
case has hit the headlines following the ruling by the Supreme
Court because her situation is becoming one of the greatest fears
for the UK's rapidly ageing population.
"Elaine had taken the local authority to court for not providing
her with overnight care to assist her in using a commode during
night time hours," explains Fiona.
"In a split judgement the court has said that she is not
entitled to overnight care from the Royal London Borough Council of
Kensington and Chelsea and that she should use incontinence pads or
absorbent sheets at night, bringing a saving of £22,000 for
the council as compared to the cost of care."
However, concerns expressed by the dissenting Judge and age
related charities is that the case and ruling will simply encourage
councils to withdraw support, as Fiona comments: "Elderly people
will be forced to lie in their own urine or faeces during the
night. Those opposing the decision rightly argue it highlights
these situations are as much a matter of human dignity as they are
an issue over the level of care a person receives.
"The knock-on effects of these types of sad situations,
including the increased incidence of bed sores, and the dreadful
indignity of being washed in the morning, have simply not been
considered in the judgement."
Recent changes in the Benefit system have been promoted to
encourage their spending in the best way possible for someone who
requires care or assistance. It works by allowing them to choose
which services they want and feel they need most. As would be
expected, night care carries a premium cost.
"The plight of Elaine McDonald resonates with so many of us, for
ourselves or elderly relatives," says Fiona, "and with this goes a
sense of feeling beyond able to control situations like this, and
to preserve dignity.
"However, there is something we can all do to plan for a time
when we are too old, ill, infirm, or lack the mental capacity to
care for ourselves, and the absolutely best time to take this step
is while still able to express your views and make decisions for
yourself," says Fiona.
"The best legal option available to ensure your wishes are
followed is to appoint a person as your attorney to make those
decisions for you when you are unable under a Lasting Power of
Attorney," explains Lisa Whitehose, a solicitor in Challinors
wills, trust and probate team.
"The individual you chose as your attorney will have the legal
status to 'fight your corner' when it comes to decisions
surrounding your Health & Welfare. This can be as basic as
ensuring you do not have sugar in your tea, through to making
decisions about the refusal of life sustaining treatment. The
attorney is only able to make decisions on your behalf when you are
unable to so. So long as you are able, you still have the power to
make your own decisions."
Fiona adds: "Powers of Attorney are traditionally only
considered when people appoint attorneys to manage their finances.
However, having a person of your choosing to make the more
important decisions about your health and welfare is in my view,
even more important. It means you can in effect have a say in your
care right to the end, preserving your dignity and freedom of
choice as much and for as long as possible."
Challinors firm has offices in Birmingham, West Bromwich,
Wolverhampton, Halesowen and Nottingham. It has 22 partners and
over 100 fee earners, and is ranked as one of the top legal firms
in the West Midlands - The firm's Family Law team received top
tier, Band 1 ranking in the latest, 2010, Legal 500 Directory and
is ranked in Band 2 of the Chambers UK Directory.