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“I know we’ve had that conversation, but it isn’t logged anywhere…” | The importance of a lasting power of attorney

29 April 2021

Good Morning Britain’s Kate Garraway has revealed the legal difficulties that she has faced on top of her husband’s battle with coronavirus, in a recent interview with The Times.

The TV presenter spoke about how her husband Derek Draper, who is still fighting to recover from complications of coronavirus, does not have a lasting power of attorney (LPA). As a result, on top of the worries about Derek’s condition, Kate and the family have experienced legal difficulties in dealing with his affairs while he hasn’t had the capacity to do so himself.

Explaining she has been in “survival mode” throughout Derek’s illness, Kate discussed the financial difficulties they have faced as his wages came to an abrupt halt. Furthermore, Kate had to temporarily take time off from her own job as a presenter to look after her family.

As Derek did not have an LPA in place, Kate has been unable to access Derek’s bank account, their mortgage account (as he is the named account holder) and even their joint savings account.

Kate revealed that she and Derek had even informally discussed putting an LPA in place prior to his illness, but it wasn’t recorded or registered. What followed after Derek’s hospitalisation was difficulty in deciding whether Derek had capacity to make control his affairs, as it was hard to determine whether or not Derek’s condition is regarded as ‘in a coma’.

The reality is, without an LPA in place, Kate is not legally authorised to make decisions about Derek’s health or welfare, finances or business on his behalf. When a person has lost the capacity to make decisions for themselves, it is too late to make one.

What does an LPA do?

An LPA is a legally binding document in which an individual nominates a trusted person (or people) to make decisions for them, in the event that they lose the capacity to do so.

Different kinds of power of attorney can be made to account for different scenarios and circumstances. You can make a health & welfare LPA to enable someone you trust to make decisions about your medical care and treatment, a business LPA to handle your business affairs, and a property and financial affairs LPA to cover your monetary and property assets.

Do I need to make an LPA?

As the pandemic carries on, many other families will sadly have found, or find themselves, in a similar situation to Kate and Derek. Unfortunately this is just one of a wide range of situations in which someone might, unexpectedly or otherwise, lose capacity. These include accident and injury or illnesses, such as Alzheimer’s or dementia.

If an LPA is not made or formalised, and the unexpected happens, your loved ones might be faced with legal or financial worries on top of an already distressing situation.

You may have the ability to access things like joint accounts and online banking, but that doesn’t mean you will have the legal right to do so or transfer monies. This can, of course, lead to serious financial consequences in the short term. You would either have to wait until your loved one recovers and regains the ability to make decisions for themselves or apply for deputyship.

What is a deputyship application?

If your loved one has no LPA and has permanently lost capacity, you will have to apply to the Court of Protection for a deputy to be appointed. This is sometimes referred to as a deputyship application, and it is a method of gaining the legal power to make decisions for someone else, if they no longer have the ability to do that themselves.

Much like with LPAs, there are different types of deputyship. One covers decisions relating to property and affairs, the other covers personal welfare decisions. A deputyship is the only way you will be able to legally make these decisions on the behalf of the donor (the person who lacks capacity).

A deputy (or deputies) must be over 18 and is normally a friend or relative of the donor, but in some cases they can also be a professional nominated by the Court of Protection.

Applying to the Court of Protection can be a long, stressful and complex process and you will have certain responsibilities and duties you will need to uphold as a deputy. Therefore, you would be well advised to instruct a specialist lawyer to help you through the process.

As with many things, prevention is better than a cure. It’s not nice to think about potentially losing capacity, but putting lasting powers of attorney in place is a valuable and sensible insurance for the future, against financial worries and untold stress for your loved ones.

We’re here to help

Our highly regarded team can assist you with putting in place provisions for LPAs and deputyship applications, along with matters such as trusts and creating or updating a will. We’re rated by national legal guides for our expertise, and over the years, have advised generations of the same family on wills, trusts and inheritance tax planning.

As always, if you need legal advice, we’re here to help so please get in touch.

Partner and head of the wills, trusts & probate team, Simon Cook has 25 years’ experience in the field. He is rated in independent national legal guides The Legal 500 and Chambers High Net Worth.

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