Dangers of Not Having an LPA

In March 2020, 53-year-old Derek Draper, husband of Kate Garraway, contracted COVID-19 and was put into a medical coma in an intensive care unit. In the next few months, as her husband became seriously ill, the TV presenter learned first-hand the perils of not having lasting power of attorney. The “financial mess” she described publicly should be a lesson to us all.

Thankfully, Mr Draper is now back at home and recovering slowly, but the couple’s story is one which many of us should heed.

Sudden illness, an accident; we could all lose capacity in the blink of an eye

The coronavirus pandemic has brought home to many of us how quickly our life circumstances can change, but it’s not just a global health emergency which could turn our worlds upside down.

Any circumstance which renders a person unable to make decisions for themselves (having lack of mental capacity) can lead to serious upheaval for loved ones and especially spouses, who may have shared many of the services jointly while the other spouse took care of all the details.

As Kate Garraway found out, the minute her husband became incapacitated several important financial and business elements of the family’s life were now out of her control – it was her husband’s name on the bank accounts, insurance policies and car documents. Only he could make decisions.

She said in a TV interview, “There are lots of financial goings on which are making life very complicated because I can’t get access to things because legally, I haven’t got power of attorney.”

Being Next of Kin is not enough

Many of us mistakenly believe that our next of kin (husband, wife, civil partner, son, daughter etc.) will be able to make essential decisions on our behalf if we become incapacitated, but this is not legally the case.

To be able to represent a loved-one officially, a person will need to be named as attorney and a valid Lasting Power of Attorney (LPA) must have been set up. The attorney’s capacity will depend on whether they have been named on a property and financial affairs LPA or a health and welfare LPA, or both.

As Ms Garraway found out, only the donor (the person choosing the attorney) can nominate an attorney, so once the donor is incapacitated it’s too late and their next-of-kin will need to make an application to the Court of Protection to become their deputy.

Getting the legal aspects right

An LPA is a powerful legal document and it pays to seek advice from a specialist solicitor for LPAs to ensure it is set up correctly, an invalid LPA may only be discovered at a critical time and this can be devastating for loved-ones.

Similarly, if you need to apply to the Court of Protection, the advice and guidance of an experienced solicitor who specialises in deputyship issues, is crucial to ensuring an application is made correctly.

LPAs – the stats

According to research, 65% of adults believe next of kin will be able to make decisions on their behalf if they lose capacity.

Only 22% of UK adults have LPAs in place.

Around 22,000 LPA applications are rejected each year for anomalies which prevent them being set up in the first instance.

Putting it off is a false economy

Setting up Lasting Powers of Attorney does incur a cost and you’ll need to factor in fees for legal advice, but it can cost considerably more financially, as well as in terms of stress and emotional expenditure, to have to apply to the Court of Protection for deputyship.

As Kate Garraway has said, she and her husband talked about setting up powers of attorney in case anything happened but it was little more than a jokey aside, and although she remembers the conversation, nothing was actioned as a result: “It isn’t logged anywhere. Or if it is, I can’t find it.”

Contact Wellers today to talk to us about setting up an LPA or if you need to apply to the Court of Protection to become a deputy. We can provide the legal expertise you need to help your application go as smoothly as possible and to help minimise the possibility that your application is rejected.