Mr G, a man in his mid-forties was married with three children. He had his own business which was extremely profitable, and enjoyed his pastime of playing golf and swimming. He would take flamboyant holidays about four times a year with the family, with at least two involving skiing in the French and Swiss Alps.
When he came to see me to draw up his Will, we discussed preparing Lasting Powers of Attorney (LPA’s). “What are they”, he asked? I explained that a lasting power of attorney is a legal document that lets you (the ‘donor’) to appoint one or more people (known as ‘attorneys’) to help you make decisions or to make decisions on your behalf. This gives you more control over what happens to you if you have an accident or an illness and cannot make your own decisions (you ‘lack mental capacity’).
There are two types of LPA’s. The first would allow attorneys to make decisions about his property and financial affairs; such as paying bills, making sure his investments were continuing to do well, and to protect his business in the way he would want.
The second, relates to his health and welfare, for example to decide whether he needed to go into a care home and to attend to his personal needs. It also gives authority to the attorneys, if they needed to make decision in relation to life sustaining treatment.
“Who would be my attorneys…. as my wife would not be able to make decisions about my business or finances, as she is not familiar with the practice of the business?” I explained he should appoint person(s) that he trusts implicitly and would always act in his best interest at all times, with a good understanding of his business.
Mr G thought about this and concluded that he did not need to put Lasting Powers of Attorney in place, as he was young, it was very unlikely he would lose capacity, or indeed have an accident where he would be physically immobile or suffer Alzheimer’s or dementia at his age.
Three years later, his wife contacted me in extreme distress to say that he had suffered a cerebral aneurism from a skiing accident which caused severe brain damage and compromised his mental capacity. She needed access to his bank accounts to continue funding the children’s private education, pay the bills, and to continue with his business to provide for the family, along with the ability to access the business accounts and pay salaries.
Even though she was his wife, the banks refused to give her access to any of his assets. It was too late to now put in place the LPA’s as he had lost mental capacity. We had to apply to the Court of Protection, to appoint his wife to act as a “deputy” which was extremely expensive and time consuming, due to the statutory and court time lines. This was extremely distressing for his wife and the family as a whole.
Had Mr G taken the advice to prepare LPA’s at the same time of making his Will, the family could have avoided this sad and distressing situation.. Mr G could have chosen person(s) who would be competent and understand his business and finances. His wife could have obtained access to the personal bank accounts to deal with the family expenses and to have peace of mind. If they were in place, she would be in a position to solely concentrate on her husband’s condition without having the added stress of financial survival.
So in answer to the title – Yes, there is no time like the present…..and the current chaos we are in proves that we just do not know what is around the corner.
Website content note: This is not legal advice; it is intended to provide information of general interest about current legal issues.