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Kate Garraway’s story: why a lasting power of attorney can be vital

Approximately 78% of the UK’s adult population do not have in place lasting powers of attorney.

You may have seen Kate Garraway’s documentary ‘Finding Derek’ setting out the situation this strong and resilient couple have found themselves in since Derek Draper fell ill with COVID-19 in March last year. They will be far from alone in this at the moment, but this insight into their lives illustrates a situation that many people can find themselves in - and not just as a result of the current pandemic.

Kate Garraway has explained the difficulties she has encountered particularly with regard to dealing with financial matters on her husband’s behalf, but also with regard to the making of health and care decisions where he cannot do this for himself. In common with approximately 78% of the UK’s adult population, they did not have in place lasting powers of attorney (‘LPA’) either for property and financial affairs or health and welfare which would have given one or more attorneys the legal standing to be able to step in and assist where needed.

Prevention is better than cure

Most of us delay thinking about the worst-case scenario, and this is completely understandable. However, making an LPA is a relatively simple process while there are no issues around mental capacity. It could be thought of in the same way as putting an insurance policy in place – none of us ever want to make insurance claims, but sometimes life throws up challenges.

LPAs can be made directly with the Office of the Public Guardian (‘OPG’) or alternatively via a solicitor, who can advise fully on the individual circumstances and options available to avoid potential pitfalls which may not come to light until the LPA needs to be used. The OPG’s latest annual report confirmed that there were over 4.7 million current powers of attorney on their register, and they received applications to register 917,550 LPAs and older-style enduring powers of attorney (‘EPAs’) in that 12-month period.

No LPA or EPA in place - is a deputy needed?

Where there are issues around mental capacity to make decisions and there is no LPA or EPA in place, it may be necessary to make an application to the Court of Protection for the appointment of a deputy, especially in respect of dealing with property and finance matters. Of the almost 61,000 Deputyship Orders currently supervised by the OPG, only a very small proportion are for health and welfare appointments – although the court is often involved in cases where specific decisions are needed on these matters.

Applications to the court can be made by individuals, or assistance can be obtained from a solicitor. Timescales from application to the court agreeing an order can be lengthy, and have certainly been impacted by the pandemic. Getting the application and procedure correct can be helpful in keeping this to a minimum. Our Court of Protection team is happy to be able to offer help in respect of various types of application relating to property and finance, for example for appointment of a deputy to manage property and finances, requests for court approval for gifting, and applications for statutory wills to be put in place.

Beverley Beale, Head of Weightmans’ Court of Protection team, acts as a professional deputy in cases where this is appropriate for the individual and is also appointed to the OPG’s panel of court-approved professional deputies. The court chooses deputies from the panel when no one else is willing or able to act as deputy for someone who lacks mental capacity.

Summary

Putting in place an LPA is an ideal way for the individual to have full choice over who they would wish to act for them if something went wrong – it’s just about being prepared.

 

If you have any queries or would like to discuss further, please contact Daniel Snedden, Associate at dan.snedden@weightmans.com.

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