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Joshua, Lawyer
Category: Family Law
Satisfied Customers: 26070
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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My brother has terminal cancer. He separated from his wife

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My brother has terminal cancer. He separated from his wife 10 years ago but they are not divorced. Since then he has lived with his new partner. Who has the right to determine his final treatment and eventual resting place, the wife or the partner of 10 years?
Hello and thank you for your question. I will be very pleased to assist you. I'm a practising lawyer in England with over 10 years experience. I am sorry to read of your brothes circumstances. Could you tell me if your brother has a) made a lasting or enduring power of attorney? b) is conscious and has capacity to make decisions at this time and finally c) if he has made a will?
Customer: replied 2 years ago.

I'm afraid that I can't answer a or b but I doubt if he has done either. He is at this time conscious but whether he's capable of making decisions I don't know. Unfortunately I live in Holland and he is in Durham. I am his only living family member; a brother ten years older at 76.

Thank you. was your brother is alive and able to make decisions for himself, then he is entitled to make decisions about his own care including the right to give directives to doctors and medical staff regarding his care should he lose consciousness or capacity. If he does not do so or has already lost consciousness or capacity then neither his spouse nor his partner will have a legal right to make decisions about his care or welfare unless he has made a lasting power of attorney giving one or both of them that right. Even where he has made a lasting power of attorney, that power of attorney must be registered at the office of the Public Guardian before it can be legally used. If he has not made a lasting power of attorney or the power has not been registered, then as above, neither his spouse nor his partner can make legal decisions on his behalf but rather such decisions will be made by his doctors on what is known as a best interests basis which is provided for by the mental capacity act. In making a best interest decision, doctors must give consideration to any directives your brother left and also the wishes and views of close family members which will include both his partner, spouse and indeed you as his sibling as well as any children and so on. Ultimately, doctors can ignore any and all of those views and proceed with what they consider to be a best interests decision but they must show that they had taken account of such views in making a best interests decision. If the family strongly disagree with doctors and are unable to persuade them otherwise, the family can make an application to the Court of protection for an order in respect of his care but in the overwhelming majority of cases, in practice, care provision can be agreed with medical staff as doctors will be prepared to take account of family's wishes providing it is not in their opinion prejudice your brothers care. Following your brother's death, the position changes in that any will your brother has made will take effect and any executor that your brother has appointed in his will will be legally entitled to administer his estate according to the terms of his will. If he has not made well, then his spouse will have first right to administer his estate even if they are separated. In addition, If he has not divorced his spouse, if there are no children, his spouse will be entitled to his entire estate. If your brother does have children, his spouse will be entitled to the first £250,000 of his estate with any balance being split with the children receiving half of that balance and the other half following his spouse's death (his spouse will have a right to interest on the capital for life). Accordingly, ifthe above would not be your brother's wishes which I suspect may be the case if he has separated from his spouse, it is very important he makes a will is a matter of urgency because his partner that he presently lives with is not entitled to anything under the intestacy rules if he has failed to make a will though she may be able to claim for financial maintenance under the Inheritance Act. I hope the above is of assistance? If you have no further questions for now I should be very grateful if you would kindly take a moment to click to rate my service to you today or just reply back to let me know if the above is helpful. Your feedback is important to me. If there is anything else I can help with please reply back to me I'd be very grateful
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Customer: replied 2 years ago.

Thank you very much, that helps to clear up some points of doubt but will not of course help to resolve the complications we are about to experience between the two factions who have yet to discuss these problem areas. Again, many thanks, ***** ***** a help. John Warman

I am glad i could assist.