Kate Garraway and legal protections we should have in place
MARK STUBBERFIELD >
Head of Wills, Probate and TrustsThu 25 March 2021
Kate Garraway’s heart-breaking story of her husband Derek’s year-long battle with COVID-19 has been made even more complicated. This has been caused by the lack of legal protection that she and Derek had in place. Kate was unable to access funds to manage her husband’s care or refinance her mortgage. She did not even have the legal right to see his medical notes because of issues with data protection.
To avoid this happening, it is possible to make a Lasting Power of Attorney (LPA). This is a document that lets you choose someone to help make decisions for you about your finances or your health, if you can no longer make those decisions yourself. In theory, this could be anything from deciding what to have for breakfast to deciding where to live or whether to give life-sustaining treatment.
There is a common misconception that if a couple have a joint bank account and a property in joint names, the other can legally make decisions for them. In fact, research from Direct Line reveals that 80% of people believe that their next of kin would be automatically allowed to take over their affairs, if one of them lost their mental capacity. In reality, this is not the case unless there is an LPA for Property & Financial Affairs.
As the average age of the population increases, illnesses like dementia are becoming more and more common. According to the Alzheimer’s Society, one in three people over 65 will develop some form of dementia. This makes it even more likely that people will need to use an LPA.
Nor, as Kate and Derek’s story shows, is it an issue that just affects the elderly. According to the Alzheimer’s Society, over 40,000 people in the UK under 65 have early onset dementia. Added to that are those who might not have dementia but still do not have capacity to make their own decisions, such as someone who has a brain injury after an accident.
It’s never too early in life to start thinking about making an LPA; even if you think your LPA will never be used or you are worried about tempting fate, at least it will be there just in case you do need to use it.
To avoid this difficult kind of situation it’s important to use a specialist lawyer who is experienced in this area of the law and is trained to support people making these crucial, complex and difficult decisions. A specialist will be able not only to draft the documents themselves, but talk through your aims with the LPAs and tailor the documents to your specific needs and wishes.
If you don’t have an LPA and you lose mental capacity to make decisions, it is not the end of the world but the situation could be trickier and more expensive. In that case, someone would need to apply to the Court of Protection to be your deputy.
They would still be able to manage your affairs for you, but there would be a lot more work involved and the whole process could be much more expensive. Better instead to plan for the proverbial rainy day with an LPA.
An LPA can give you the peace of mind that if you are no longer able to make decisions yourself, a loved one can help make those decisions for you and will have your best interests at heart.
Please contact our Wills, Trust & Probate department on 020 3540 4444 or email them at firstname.lastname@example.org or click here to read more about LPAs.
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