TV Personality Kate Garraway – The Importance of Lasting Powers Of Attorney

In her latest blog, Jo Robinson discusses TV personality Kate Garraway’s sad predicament and highlights the importance of Lasting Powers of Attorney (LPA).

Kate’s husband contracted coronavirus during the first lockdown in March and remains in hospital in poor health. Kate has openly talked about the problems she is experiencing being left alone to care for the couple’s two children and to deal with the household finances – particularly because the bills and policies are all in her husband’s sole name. Kate has openly said on TV’s ‘Good Morning Britain’ that she is struggling because she does not have Power of Attorney for her husband.

Kate’s situation clearly demonstrates the importance of Lasting Powers of Attorney and may help to break the belief that Lasting Powers of Attorney are only required for the elderly or vulnerable.

What Is A Lasting Power Of Attorney?

A Lasting Power of Attorney (LPA) is a legal document which allows you to appoint Attorneys to make decisions on your behalf if you become physically or mentally incapable of making them yourself. It is possible to make a Lasting Power of Attorney in respect of Property and Finances and Health and Welfare, although the latter can only be used when you lack mental capacity. A Lasting Power of Attorney must be registered with the Office of the Public Guardian before it can be used.

Here Are A Few Points For You To Consider:

Should I Appoint My Children?

Many people want to appoint their children as their Attorneys and some still think it has to be the eldest child, but is this always the best option? Firstly, consider if they are good at managing their own affairs. If you have children who can’t manage their own money, why would they be any different with yours? Secondly, do they live locally? Will it be convenient and feasible for them to act for you?

Finally, how much time do they have? Are they busy parents or career people? These practical considerations can impact upon the decision as to who is the best choice for the role of an Attorney.

Structure Of The Lasting Power Of Attorney

LPAs can, however, be set up in various ways: jointly (where all Attorneys must make all decisions together), jointly and severally (where the Attorneys can act together or independently) or a combination of the two where joint decisions are required on only certain issues. Most people elect to appoint their Attorneys jointly and severally for the sake of convenience.

If Attorneys are likely to disagree or live some distance away it could be more sensible to limit the ‘jointly’ part for major assets or decisions and leave the rest “jointly and severally”. In any event, the wisdom of appointing Attorneys who do not get on is questionable.

Replacement Attorneys?

An LPA set up without a replacement Attorney could be problematic as the Attorney would need to be replaced if the original died, refused to act, became unwell or became bankrupt. Obviously, this would not be a problem if several Attorneys are appointed “jointly and severally”. Without a replacement, however, a Court of Protection application would be the default option and is a costly and lengthy process.

Capacity

A proper capacity assessment is central to the production of an LPA. A solicitor will often certify capacity in straightforward cases when it is clear that there are no issues, but a doctor’s report may be required to ensure that the donor fully understands the advice or information given. If the certificate of capacity is given by a non-professional then they must fully understand what is expected of them and be prepared to justify their decision (as should a professional). Caution will be exercised when the initial request for an LPA comes from a family member, rather than the client themselves.

Safeguards Or Protections

It is possible to build in safeguards, but people are often reluctant to include them. Preparation of accounts, limits on sale of certain items and restrictions on loans or gifts are all options. Safeguards can provide extra protection for potentially vulnerable clients. LPAs should be put in place well before they are needed and the donor’s needs and wishes should be fully understood in order to select the most suitable Attorney(s). Safeguards, however, take second place to the initial choice of an Attorney who must be trustworthy and competent.

An LPA is an important document which can ensure that you get the help you need when you need it most, whilst making the process easier for those supporting you. If someone is prepared to help then it is, perhaps, only fair that they have the right tools for the job. At Timms we are always happy to talk you through your options when you want to make life easier for those close to you.

If you would like further information regarding LPAs, please telephone me on 01332 364436 or contact me at j.robinson@timms-law.com.

Jo Robinson
November 2020