The Covid pandemic has brought to the attention of many, in an all-to-tragic way, the importance of having Lasting Powers of Attorney (LPAs) in place, and not thinking that LPAs are ‘only for old people’.
Many people mistakenly assume that because they are married or in a civil partnership, or even just because they live together as ‘common law’ partners, they have the automatic ability or right to manage their spouse’s/partner’s finances should the spouse or partner be unable to act for themselves. While this is the case with jointly held assets, it is not the case with assets held by an individual in his or her own name. This can mean a couple unexpectedly thrown in to financial complications where one of them loses capacity and their assets are largely retained personally.
This has been shown recently by the case of ITV’s Kate Garraway and her husband Derek Draper, and highlighted in her recent interview with the Sunday Times. Aside from the terrible impact of Covid-19 on her husband, who has been in intensive care for a year and on a number of occasions almost died of the virus, the family finances have been thrown into complete turmoil by his not having signed up to a financial LPA prior to becoming ill, though they had discussed it at an earlier date. As she admits, this partly led to her having to rely on friends for financial support for a while.
Furthermore, the case highlights that it is not always straightforward for the position to be rectified (albeit at considerable expense and delay) by applying to be appointed deputy for such matters, as that depends on a Court’s assessment of the ill spouse / partner’s lack of capacity. Unless it is clear cut, an appointment of a deputy is unlikely to be granted easily.
As a result, Kate Garraway cannot access Derek’s accounts, cannot refinance their property, and even cannot deal with his mobile phone providers easily. She also does not have clear authority to make medical decisions for him when he lacks capacity.
Finally, as a useful and related aside, the interview also highlights the importance of a couple having up to date Wills in place. The Sunday Times interviewer, Decca Aitkenhead, refers in the interview to the ‘calamitous consequences’ of her late partner not having an up to date Will when he accidentally drowned some years ago.
While we are fit and healthy it is easy to ignore or procrastinate putting in place what are actually fairly straightforward documents that will, should the worst happen, greatly assist our loved ones. While not the central point of the interview, hopefully it will bring to the attention of a wider audience the importance of both LPAs and up to date Wills.
[Draper's] medical nightmare has plunged [Kate] Garraway down a parallel legal rabbit hole. She cannot access his bank or credit card accounts, their joint savings, or refinance the mortgage...she doesn't even have the legal right to see his medical notes...All this could have been prevented had the couple [granted] one another power of attorney