As part of dementia awareness week, I want to explain the value that a Statement of Wishes and Feelings can offer when supporting a person no longer able to express their wishes and feelings for themselves.
The Adults with Incapacity (Scotland) Act 2000 has a set of guiding principles which anyone exercising a function for an incapable person is obliged, by law, to respect. One of these principles is the need to take account of the present and past wishes and feelings of the person, so far as these can be ascertained. Additionally, and increasingly, people are alert to the United Nations Convention on the Rights of Persons with Disabilities which also requires us, amongst other things, to respect a person’s preferences on a given matter. We are obliged to act as the person themselves would have chosen to do – but how do we know what they would have chosen to do if they are no longer able to tell us?
If we are to be acting as an attorney to a family member, we may feel we already know our loved one’s views, but do we truly? We speak to our friends about things we don’t burden our children with, no matter their age, or to our sibling about things we don’t relay to our partners – so can we be sure we know a person’s real views on something? This is where a Statement of Wishes and Feelings has its value; within it a person sets out their views on matters important to them; we’re not talking here about ‘end of life’ decisions but rather the person’s views on living life the way they would wish to live it if they are no longer able to determine this for themselves.
What is a Statement of Wishes and Feelings?
A Statement of Wishes and Feelings can contain anything on which a person wants to give their future attorney a steer or direction. It can be wishes on little things as well as more substantial matters. There is no limit on what can be included, anything which is important to the person and which they would wish others to know.
There is no formality to a Statement of Wishes and Feelings i.e. it does not need to be in a particular style, it can even be handwritten. It is best done sooner rather than later, so there can be no doubt that it expresses a person’s views, whilst mentally capable of offering these. Often people will do a Statement of Wishes and Feelings around the same time as they are doing a Power of Attorney (PoA). The Statement does not need to be dated, signed or witnessed but signing it can help prove that it is the views of the person and dating it shows that these were their views as at that date, so I would advocate dating and signing it. Having an independent person witness the signature can also assist.
Some people attach a Statement of Wishes and Feelings to their PoA but it can be a standalone document which is added to as different things occur to the person. If the person is keeping it in their possession it is good practice to review it periodically and, even if there aren’t any changes, update the date and signature, which helps people see there was a consistency of view.
When the Statement is complete a copy should be sent to the person’s nominated attorneys, as well as to anyone else who may have an interest e.g. other family members, friends, solicitor, financial advisor, or doctor. Some people record in their PoA that a Statement of Wishes exists and where this can be found.
Of course a Statement of Wishes and Feelings does not replace open, and ongoing, dialogue between granter and attorney; but attorneys regularly find themselves in a position of not really knowing what the person themselves would have opted to do on a given matter. A Statement of Wishes and Feelings may give valuable insight and so direction for the attorney, which gives them comfort. And, if you are the person with impaired or lost capacity, you have the reassurance of knowing, by your Statement of Wishes and Feelings, that you have set out your values and preferences so that these can be respected should you no longer be able to make your own decision on a matter.
The importance of making a will and granting a PoA are, rightly, often emphasised, the importance of a Statement of Wishes and Feelings should stand along with these. We should think of these three documents as the triumvirate of ensuring a person’s values, rights and wishes are respected when they are no longer able to enforce these personally.