Kate Garraway’s heart-breaking story of her husband Derek’s year-long battle with Covid has been made even more complicated by the lack of legal protection she and Derek had in place. Kate was unable to access funds to manage her husband’s care or refinance her mortgage. She didn’t even have the legal right to see his medical notes, owing to data protection.
Research by SFE, shows that 65% of us think our next-of-kin will make medical and care decisions for us if we are no longer able to. In reality, this isn’t the case unless a Health & Welfare Lasting Power of Attorney is in place. Whilst there has been a rise in the number of enquiries made about Lasting Power of Attorneys (LPAs) during the pandemic, only 22% of people in the UK actually have one.
To avoid this difficult kind of legal situation it’s important to use a specialist lawyer experienced in this area of the law, and trained to support people making these crucial, complex and difficult decisions. According to Which? 22,000 LPAs are rejected every year so it’s essential to draft your legal documents correctly.
Personal Finance LPA
Attorneys can make decisions regarding personal assets such as buildings, bank/savings accounts, investments, pensions, life policies and anything of a personal financial nature.
Attorneys can act at any time (once registered) with consent or can be restricted to only step in when a person (the donor) can no longer make decisions for themself.
No one can make financial decisions, and the donor’s assets including joint and business assets would be frozen until a Deputy were appointed. A Deputy is similar to an Attorney, but is Court appointed and usually has restrictions upon them.
The person applying to be a Deputy may not be someone the donor would have chosen.
Deputyship applications can cost £1,000s and often require multiple additional applications to remove restrictions depending on the estate assets.
Deputyship Applications on average take 12 – 18 months to complete with no access to funds during that time.
Health & Welfare LPA
Attorneys can make decisions about anything to do with health and welfare, including medical treatment, where and how the donor is cared for, day-to-day decisions such as daily routine (i.e., eating, washing and dressing etc.).
A Health LPA can only be used once it is established a donor can no longer make health decisions.
There is no legal definition of ‘next of kin’. Carers, social workers and medical professionals make decisions; and whilst they do act in a person’s best interests, things become difficult if there is disagreement between health providers and loved ones.
There is a similar (costly) Deputyship route, but Health Deputies are almost never appointed.
It is not always appropriate to appoint the same Attorney as under the Personal Finance LPA due to commercial legislation or practices which prevent the duplicate appointment.
Plus, if the Attorney lacks competency they may find themselves and/or the business subject to a claim due to their unsuitability.
A BLPA can be used at any time with consent or restricted until loss of capacity.
A BLPA ensures businesses will not suffer if the owner/partner/director lost capacity. It is a tax-deductible business expense and part of the business crisis management strategy so insurance premiums may reduce.
The day to day running of the business would be hampered and certain tasks could not be carried out, such as paying staff or suppliers, and fulfilling existing contracts.
Where a business’ bank account includes the name of the incapable business partner, or sole trader, the account will be frozen which would most likely expose the business to failure or winding up.
A partnership or company will be ‘stuck’ with an incapable partner or director as the Equality Act 2000 prevents their removal under the Partnership Agreement or Company Articles.