We need to talk...
Death, apparently, is the ‘last great taboo in our society’. So says our very own Department of Health, which identified a ‘lack of openness and discussion about death and dying’ in its End of Life Care Strategy, published in 2008. And while the strategy focused primarily on palliative care, clinical pathways, and social care issues, it also made explicit a universal truth that affects all of us throughout society: we don’t talk about death, dying and bereavement nearly enough.
Why not? Could it be that famous British reserve, perhaps; the stoic ‘grin and bear it’ attitudes that reflect the character of so many of us? Or is it just that we all think that it’s none of anyone else’s business?
Whatever the reason, this lack of decision has a significant, and very important, impact on our society. It’s not just the provision of healthcare that suffers. There are more prosaic, everyday issues that are often neglected, overlooked or misunderstood, and that could be better addressed through conversation with family and friends, or even colleagues.
With that in mind, one of the results of the End of Life Care Strategy was the establishment of the Dying Matters Coalition, with the collective aim of encouraging more openness and engagement around end of life issues among the public. The National Council for Palliative Care, the umbrella charity for all those involved in end of life care, was asked to set up and lead the coalition.
Its members are broad and diverse, coming from organisations in the NHS, voluntary and independent health and care sectors, a wide range of faith and community organisations, schools and colleges, trade unions, the funeral sector and, last but not least, the legal profession. They have come together to try to make living and dying well the norm for everyone.
FAIL TO PLAN…
You could certainly be forgiven for wondering why I am writing about end of life care in the magazine of the Probate Section, but what Dying Matters has helped to identify is that a lack of conversation is also negatively affecting people’s ability to plan for their own end of life effectively. This includes the most important part of the planning process for many people: writing a will.
We are all aware of the legal implications for people who don’t have a legally-binding will in place, and what that can mean for an intestate’s friends and family, both financially and emotionally. In March this year, I attended a conference in London to mark the launch of Dying Matters’ national awareness week. What struck me in particular was that a significant number of people in England – nearly two thirds of adults, according to research commissioned by the coalition – still haven’t written a will. Even more surprising is that a quarter of over 65s don’t have a will in place, either. Anecdotal evidence suggests that even those of us of pensioner age or above don’t really feel close to death, which is laudable in some ways, but it’s a position that can cause considerable problems for those left behind dealing with the estate of a person who has died intestate.
Dying Matters is working to address this problem, and to encourage people to take steps to ensure that having a will in place is an important part of their end of life planning process.
There is considerable confusion among the public about the technicalities and legalities involved in the will-writing process, and a misconception that they are expensive and time-consuming to produce. The law retains a certain mystery for many laypeople, and it falls to us in the legal community to make our work and the process of writing a will as clear, comprehensible and user-friendly as possible.
From my own personal experience I have found that what people fear most about dying is the associated loss of control. I believe that the insight provided by Dying Matters’ research reveals the scale of the challenge, but that it opens up an interesting opportunity open for solicitors to help. We can help empower individuals by enabling them to express their ‘dying wishes’ through the writing of their will, and help restore the feeling of control that people fear losing, by ensuring that their assets are protected, and that their family and friends are provided for after death. In fact, the practical aspects of making a will often help give people an accessible focus to their end of life preparations. We are all living increasingly complicated lives, and society is seeing higher rates of divorce and re-marriage, which means that it is becoming more and more important for everyone to set out what they would like to happen to their assets in death.
We solicitors have a duty to explain sensitively the importance not only of leaving a will in place, but also of following a thorough, blinding and professional process in drawing it up. Many people are simply not aware of the difficulties family members or friends could face, not just if a will isn’t put in place, but also if a simple mistake is made in the drafting of the document.
Off-the-shelf will kits are becoming more popular, and there is a wealth of information available on the internet for little or no cost. For those people looking to develop a will and who have relatively straightforward affairs; no dependents or businesses to distribute, for example, this can often look like a sensible, cost-effective option. However, there are inherent risks to not thoroughly ensuring that a legally binding document is in place at the end of a ‘DIY’ process. Regardless of the complexity of a person’s affairs, the advice of a solicitor should always be sought.
For many people death is an infinitely complex and emotive subject, and addressing it with the right balance of frankness and sensitivity can be a challenge for people in any profession, let alone family and friends. It’s here that the resources created by Dying Matters can really help us. Dying Matters is assisting everyday people to have their own conversations, helping people negotiate the common barriers to having those discussions in the first place, altering the sense of isolation, and offsetting the difficulties that may arise in the final stages of someone’s life. For example, it’s a common fear that by talking about dying, or by writing a will, or making the most tentative plans about their death, people will somehow bring it closer than it was before. Similarly, as people get older, the worry of not knowing what will happen to them or their assets can become overwhelming. In both cases, it often becomes easier for people to ignore the inevitable.
This reticence to address the important truths occur with the person facing death: when someone is ill, or in the final stages of life, family members and friends instinctively want to protect them; to reassure them that they will get better, or live longer. In these circumstances, all talk of ‘what if?’ or questions about wills, deeds and inheritances are silenced. It’s so important that people plan for their end at the earliest possible stage – ideally people should write a will as soon as they own a property – so that ‘too soon’ doesn’t become ‘too late’.
Solicitors are often faced with having challenging conversations with individuals or family members at a time when emotions are running high, but even when people plan long in advance of their own death, it can be difficult to get people to think rationally about their ‘dying wishes’. The questions: ‘what do I want to happen to myself when I die?’; ‘what do I want to happen to my assets?’; and ‘how will my affairs be handled when I’m gone?’ can be very tough for a person in middle age with a young family, or older dependents, for example. No one really wishes to contemplate a time when they’ll lose a family member, but it’s nevertheless an important thing to address.
It’s here that the resources created by Dying Matters can really help everyone. Dying Matters is assisting people with having their own conversations, helping people negotiate the common barriers to having those discussions in the first place, challenging the sense of isolation so many feel when address end of life issues, and offsetting the difficulties that may arise in the final states of someone’s life. It has developed a set of literature which can help reframe the conversation solicitors have with their clients, so that practitioners don’t have to talk about dying, death and bereavement directly, which might make them feel they are being crass or insensitive. For instance, instead of asking ‘what do you want to happen to you when you die?’, the coalition advocates asking: ‘how would you like to be remembered?’ That seems to me like a great angle from which to start the conversation. Even as professionals, we don’t have to take on a dry, detached stance with our clients if we can see that they are struggling to talk about what they’d like in their will. Sometimes a slightly different approach can help.
I would recommend that everyone involved in the practice of probate law takes the opportunity to explore the work of Dying Matters a little, or to join the Coalition; it’s a free, quick and simple process which can be done via the dedicated website – www.dyingmatters.org – and I genuinely believe that the support of solicitors is vital to the success of Dying Matters. It’s important that every profession with a vested interest in end of life is represented by a charity like the Coalition, and the legal world should be no exception.
Tony Collinson is a senior partner in Whiteside and Knowles in Lancashire and a member of the Probate Section executive committee.