The heart-breaking impact of Covid-19 has been publicly apparent for broadcaster and journalist Kate Garraway whose husband Derek Draper was diagnosed with the coronavirus back in March 2020 and is still in hospital a year later, with much of that time spent in a coma-like state. This has been made more difficult as Derek was often the named person on the bills, assets, bank, and insurance policies. Kate didn’t have a Lasting Power of Attorney (LPA) which would have legally enabled her to access the policies in Derek’s name, and without one it has been a very complicated and drawn-out process trying to access key accounts and sort out financial matters. In fact, it is impossible to access investments in someone’s sole name without an LPA.
In cases when someone has not made an LPA for their property and finances, it is possible to apply to the Court of Protection to be appointed as their Deputy however, this is far more expensive and lengthy process than putting an LPA in place. It also requires the vulnerable person to have lost their mental capacity completely and be unable to make decisions for themselves. Whilst in some cases this test of capacity is easily satisfied, in Derek’s case it is borderline, because his medical team are still trying to assess the extent Covid-19 has had on his cognitive and physical health.
Kate has spoken very openly on Good Morning Britain and in a variety of press interviews about how not having an LPA in place has caused her and her family financial worries on top of concerns about Derek’s health. Whilst you may think that Kate as his wife would be able to make decisions about his health and welfare without the LPA in place, in this case it would be Derek’s medical team. Kate does not have a legal right to access his medical notes due to data protection. It is extremely difficult and only in exceptional circumstances that a Deputyship for Health and Welfare shall be granted by the Court.
All of this could have been avoided if Kate and Derek had appointed each other as their attorneys. As a married couple in their early 50’s Kate and Derek probably hadn’t considered a Lasting Power of Attorney to be something that they needed, but unfortunately the nature of illness or accidents is that often they occur unexpectedly and at short notice. This is why it is important to plan ahead just in case you need someone else to handle your affairs and make decisions on your behalf if you are no longer able to do so due to either a short or long-term incapacity.
We recommend that all clients, regardless of age, prepare Lasting Powers of Attorney, as whilst we all hope they will never be required, if the worst happens your family will have the necessary authority to deal with your finances and make decisions about the care you should receive, they need to care for you.
There are two types of lasting powers of attorney
- Property and Finance LPA allows a person to appoint someone to look after their financial affairs. A Property and Financial LPA will come into effect as soon as it is registered which means that the attorney will be able to start making decisions about property and financial affairs straight away if that is the wish of the donor.
- Health and Welfare LPA gives an attorney the power to make decisions regarding the consent for medical treatment and care. It is not possible to use a health and welfare LPA until the person who made it has lost their mental capacity, through illness or accident, but it should be registered with the Office of the Public Guardian before it can be used.
An LPA allows you to appoint individuals who you trust, who can assist with your property and financial affairs and health and welfare decisions if like Derek you are ever in the position of not being able to give your own instructions.
Our Wills, Trusts & Estates team can help you with create, register, alter or enforce powers of attorney. Contact us today on 01491 570 900 for a quote on drafting your Lasting Power of Attorney.
Kate Garraway is releasing a documentary on Tuesday 23rd March at 9pm on ITV called Finding Derek, about her husband’s battle with coronavirus and how her family has been forced to adjust to a new way of life.