An important part of my role as a Private Client solicitor is to help clients plan for their future and to support them in taking whatever steps may be necessary to safeguard their assets in the event of their death or incapacity. This often involves asking clients to imagine some very uncomfortable worst-case scenarios to ensure that, if the unthinkable were to happen, they are satisfied that their loved ones will be provided for in the way they intended.
Clients frequently come to me to discuss their requirements for a Will, keen to ensure that everything is taken care of in the event of their death, but may not have given any thought to what might happen in the event of their future incapacity. Some married couples, or those in a civil partnership, often believe that they would have an automatic right to manage their spouse or partner’s affairs should anything happen to prevent them from doing this themselves. This assumption is incorrect, certainly in relation to individual bank accounts, property, and credit arrangements, for example. But the big shock often comes with the realisation that even assets held jointly with that spouse/civil partner can be frozen and out of their control, without the correct legal authority in place.
In other cases, the client might be aware of the benefits of a Lasting Power of Attorney (LPA), but not wish to go to the additional expense of making these arrangements at a time when the risk of incapacity still seems so far away, assuming that incapacity is something that only affects the elderly.
However, for those of us who watched the broadcast of Kate Garraway’s candid documentary, Finding Derek, last week will know, incapacity can strike at any age and with no warning at all. It can arise as a result of dementia, substance misuse, brain injuries following an accident or, in the case of Kate Garraway’s husband, Derek Draper, a year-long battle with Covid-19.
Derek Draper was just 52 years old the day he was rushed to hospital in an ambulance and placed into an induced coma, for what he and his wife thought would be just 3 or 4 days. Twelve months later Derek still finds himself in what his wife describes as “a state of limbo between life and death”, spending most of his time drifting in and out of consciousness and unable to communicate his wishes or intentions.
It is an agonising situation which nobody ever wants to imagine could happen to them. What makes the situation so much more devastating for the couple is that Kate has been unable to focus fully on Derek’s recovery or the emotional needs of herself and her children as alongside the medical nightmare the couple are enduring, Kate also finds herself in serious financial difficulty due to the fact that, for the entire time Derek has been in hospital, she has been unable access his bank or credit card accounts, their joint savings, or refinance the mortgage. Had there been LPAs in place – something the couple had discussed previously but never got around to formalising – she would have had the legal authority to deal with all of this.
What makes this case uniquely complex is the state of medical limbo which Derek finds himself in. Were it the case that Derek could be classified as having lost capacity, Kate would have the option of applying for a Deputyship Order from the Court of Protection to obtain the legal authority to manage his affairs. However, because he occasionally has lucid intervals, this is not possible. A Deputyship Application is a ‘last port of call’ and certainly not to be treated as an alternative to an LPA. It is more complex and expensive than an LPA, and requires a great deal of work at a time when families are likely to be experiencing a lot of stress and trauma and already struggling with significant difficulties which an LPA would have resolved e.g. being unable to access a loved one’s bank account to pay for care fees.
The events of the past 12 months – grave as they have been – have focussed everyone’s minds on the importance of getting their affairs in order, whatever their stage of life and, whilst this was not the primary purpose of Kate Garraway’s recent documentary, I do hope that the film will continue to raise awareness of the importance of LPAs to a much wider audience. I often tell my clients to try and think of an LPA like an insurance policy – hopefully, something to be put aside without ever needing to be acted upon, but which would be invaluable to our family and friends should the worst ever happen.
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Our Private Client team are experienced in all matters in relation to the preparation of Lasting Powers of Attorney and can provide the full package of services to make the process smooth and straightforward.
To discuss any of the issues covered in this article, please do not hesitate to contact Jennifer Purvis by email jp@swinburnemaddison.co.uk or telephone: 0191 375 5089, or call our Switchboard on 0191 384 2441 to speak with another member of our Private Client team.
