The case of tv’s Kate highlights the importance of lasting power of attorney

19th March 2021, 10:18 am

A forthcoming ITV documentary centred around Good Morning Britain host Kate Garraway and husband Derek Draper demonstrates the importance of a Lasting Power of Attorney, according to national law firm Clarke Willmott.

Former Labour Party advisor Derek was hospitalised with the coronavirus during the first wave of the pandemic and remains seriously ill in intensive care. In a Sunday Times interview ahead of Finding Derek on March 23, Kate explained she is unable to manage their financial affairs because the couple had not put Lasting Powers of Attorney (LPA) in place.

“Derek and Kate’s story puts the spotlight on this vital legal document which can be used when people lose their mental or physical capacity due to illness or an accident,” said Nicola Walker, Private Wealth Senior Associate at Clarke Willmott LLP.

“Only an estimated 1-2 % of adults in the UK have an LPA, many unaware of the impact the lack of it can have in unexpected circumstances. People tend to think LPAs are only for older people, but accidents and devastating illness can happen to anyone – especially now during a global pandemic.”

Kate, who married Derek in 2005 and is the mother of his two children, has revealed she is unable to access her husband’s bank or credit cards, savings, or refinance the mortgage and does not even have the legal right to see his medical notes.

“If someone becomes incapable without making an LPA an application has to be made to the Court of Protection for a deputy to be appointed which can be a long drawn-out and expensive process,” added Nicola. “Although urgent applications can be made for specific reasons, no-one will have a general legal power to deal with an incapable person’s assets until a deputy is appointed.”

“An alternative is to draw up an LPA, which in uncontentious cases is much preferable to a deputy being appointed. If the LPA has been registered with the Office of the Public Guardian it can be used as soon as a person becomes incapable (or before if authorised) and avoids the gap between incapacity and someone having legal authority.”

There are two types of LPAs: financial, and health and welfare. You can choose to make one type or both. The financial LPA is used to give an attorney the power to make decisions about money and property and is capable of use once registered.

Meanwhile a health and welfare LPA enables the attorney to deal with medical staff and social services care staff, as well as make decisions over your personal welfare, day-to-day routine healthcare and medical treatment but it can only be used after you have lost capacity.

According to the Office of the Public Guardian there were 3,847,008 Powers of Attorney on the register at the end of 2018-19, with the average age of the donor 74.

In July 2020, in response to the coronavirus pandemic and the increased necessity for government services to move online, the Office of Public Guardian launched a digital service that lets donors and attorneys give organisations access to view an online summary of an LPA.

Nicola Walker is a solicitor and is a registered member of the Society of Trust and Estate Practitioners (STEP) and sits on the Manchester STEP Committee.

Clarke Willmott has seven offices across the country in Birmingham, Bristol, Cardiff, London, Manchester, Southampton and Taunton.

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