Until his untimely death, mum of three, TV presenter Kate Garraway had been caring for her husband, who had fallen into a coma in the early stage of the pandemic in 2020, throughout his time in hospital and later at home. As revealed in Garraway’s two documentaries for ITV, Finding Derek and Caring for Derek their situation was made even more difficult, as the couple did not have Lasting Powers of Attorney in place. This meant that while Derek was incapacitated, she couldn’t access his bank accounts to make family payments or even see his medical records.
Now Garraway is facing the prospect of having to sell the family home to relieve the burden of financial ramifications, such as the payment of tax from closing her husband’s business. This situation has tragically highlighted the risks and complications involved when there is a lack of legal protection for yourself and your loved ones.
Who can make decisions for me if I can’t?
When we become ill, it is often our partners and closest family who would naturally take care of us. If you were to fall into a coma, or lose mental capacity, however, the ability of your partner to help you is by no means guaranteed. It is assumed by many that when you are married, or in a civil partnership, you automatically have the right to take care of them, and take important decisions on their behalf, in times of illness. This is unfortunately not true.
To have this right, you need to be appointed as an attorney through a Lasting Power of Attorney (LPA). You can be appointed under a Property and Financial LPA to manage your partner’s finances (such as making payments, handling a business, or taking financial decisions) or you can be appointed under a separate LPA for Health and Welfare to help make key medical decisions, or you could be appointed under both.
But what if it is too late?
The key factor is mental capacity. If you still have mental capacity, then you can enter into an LPA and will have the choice to appoint your partner as your attorney and you can choose how they can act. If you no longer have the relevant capacity (or have never had the capacity) then you will not be able to enter into an LPA.
There is an alternative. Your partner could apply to the Court of Protection to become your court appointed deputy. This process does take longer, is more expensive and there is a higher degree of accountability required (such as filing financial statements). It is also worth noting that this kind of order is usually only made in relation to finances and orders made for medical decisions are very rarely granted. That said, this is an option some partners need to take should suitable LPAs not be in place.
How can Peacock & Co help?
If you want to protect your loved ones and make it as straightforward for them should the worst happen, please contact one of our solicitors who can assist you with the drawing up of Lasting Powers of Attorney. This is something we would advise at any stage in life, but especially as your family grows. Each year, thousands of LPAs are rejected, so it is important to seek the advice of a solicitor to have this legal document drafted correctly, and registered successfully, to protect those you love.
If you have a loved one who has sadly lost their mental capacity, and you are looking to apply to the Court of Protection, please contact one of our specialist team who can guide you through this process.