Many people will be aware of the nightmare that Kate Garraway, the TV presenter, has been suffering over the past year with her husband having been seriously ill in hospital with Covid-19, including substantial periods of time in a coma.
For much of the time, also, Kate Garraway has been unable to visit him, and is having to look after two young children in an extremely difficult situation. What may be less widely known is the legal difficulties that she has been suffering from in connection with this.
Kate Garraway has been unable to access her husband’s bank accounts, nor has she been able to view his medical records. This has led to additional problems and expenses on top of the already extremely difficult situation that she has been suffering with over the past year.
In a recent Sunday Times interview, Kate Garraway accepted that:
“all this could have been prevented had we given each other Power of Attorney”.
This is a rather extreme example of Powers of Attorney being important documents for all people to consider, whatever their age and state of health, because “you never know what is round the corner”.
What is a Power of Attorney?
Power of Attorney is the legal process by which you can appoint somebody else to deal with your financial and legal affairs, or to make health and welfare decisions on your behalf, in the future should this prove necessary or desirable. It follows that this should be considered when you are well and healthy, rather than as a panicked reaction when illness strikes.
The process takes several months to complete, as central registration is required, and therefore needs to be considered well in advance, when it is also much easier to make dispassionate decisions as to who should be appointed.
There are two different kinds of Power of Attorney that can be considered:
- Lasting Power of Attorney (LPA) for Property and Affairs – under this arrangement, you can appoint individuals to act on your behalf and make decisions in respect of your property and financial affairs in the future, whenever you want. One such example is that you may decide to make such an arrangement if you were going to go on a round the world cruise for several months. Of course, round the world cruises are unfortunately not possible at present, but one hopes this may be feasible in the not too distant future.
- LPA for Health and Welfare – this is very similar to the other document, but covers health and welfare decisions.
Both documents need to be completed and signed by you and also signed by your Attorneys. In addition, a “certificate provider” needs to confirm that you understand the document and are not under any undue pressure to sign it.
After the document has been signed by everyone, then it needs to be registered with the Office of the Public Guardian, and this process takes two to three months to complete. The document cannot be used until it has been registered.
This therefore means that you need to allow a good period of time for the process to be completed before the document needs to be used.
An extra point with the Health and Welfare document is that this can only be used, after registration, if it has been assessed that you no longer have the mental capacity to make the necessary health and welfare decisions yourself.
This is in comparison to the Property and Affairs document, which can be used with your consent as soon as it has been registered, whether or not you retain capacity.
Obtaining specialist advice
There are several very important aspects of the LPA document that need to be considered with specialist assistance.
Choosing your Attorney and understanding the level of authority they will have needs to be something you consider in detail, and it may often be the case that the obvious choices are not the best ones.
The signing process also is fraught with difficulty, and it is fair to say, that the Office of the Public Guardian can take quite a bureaucratic approach to compliance with the formalities, which may mean that you have gone through the whole process and ended up with a document that is not valid.