The importance of Lasting Powers of Attorney – Kate and Derek’s Story

29/03/2021

Most of us will have heard the heart-breaking story of TV presenter Kate Garraway’s husband and his yearlong hospitalisation after contracting Covid 19 in March 2020.

Kate has been very honest in sharing her family’s experience and her documentary ‘Finding Derek’ which aired this month gave a glimpse of the many difficulties she is facing, including financial and legal issues due to the fact she does not hold Power of Attorney for Derek.

Common mistakes

All too often we have conversations about protecting our family in the event of a sudden tragedy but never act upon it. It is a common mistake to assume that your decision making will automatically be handled by your next of kin. Research by Solicitors For the Elderly shows that a staggering 65% of us think our next of kin will make medical and care decisions for us if we are no longer able to which is simply not the case unless you have a Health and Welfare Lasting Power of Attorney in place.

Kate herself admitted ‘We had a whole conversation and Derek said we have to appoint power of attorney in case anything happens’. Not having Power of Attorney has meant that Kate has been unable to access Derek’s bank and credit card accounts. She has even been unable to refinance their mortgage due to Derek being the account holder and has struggled to access his medical records. 

So what is a Lasting Power of Attorney (LPA)?

There are 2 types of LPA:

  1. Health and Welfare LPA – this allows your Attorney to make decisions on your behalf when it comes to day to day matters concerning your personal wellbeing,including receipt or refusal of medical treatment, where you live,daily routine and access to personal information about you.
  2. Property and Financial Affairs LPA – this allows your Attorney to make decisions on your behalf about money and property such as managing bank or building society accounts, paying bills, and maintaining your property. 

Who can make an LPA?

Anyone can make an LPA provided that:

  1. You are 18 or over; and
  2. You have the required mental capacity at the time of making your LPA

Who can be my Attorney?

Most people can be named as an Attorney and many choose to name their spouse or other close relatives or friends. In some cases a professional, such as a solicitor is named. An Attorney must be aged 18 or over and also have mental capacity. You can choose one or more people to be your Attorney and it is also possible to appoint Replacement Attorneys if at some point your original Attorney can no longer act.

Why should I make an LPA?

If you do not sign an LPA whilst you have the mental capacity to do so your family or friends may be forced to make an application to the Court of Protection to be appointed as your Deputy. This is extremely costly and time consuming.

Kate and Derek’s story highlights the importance of having proper legally binding arrangements in place prior to loss of capacity so that the peopleyou trust can act for you in such circumstances and prevent everyday routines and decision making from becoming difficult, stressful and in some cases impossible. According to Which? 22,000 LPAs are rejected every year, so it is essential that you use a specialist solicitor and get your legal documents right.

How can we help?

To discuss your LPAs contact our Private Client team for more information.

This article was written by Emma Thorpe, Associate in the Private Client Team at Pinney Talfourd LLP Solicitors. The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. Specific legal advice should be taken on each individual matter. This article is based on the law as of March 2021.

29/03/2021

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