A breadwinner takes a fall

A failure to look ahead and to take simple actions can have long-term consequences for everyone involved, as Mary found out to her cost.

Back in 1980, she and John were happily married with two children aged five and seven. John was forty-two and the household breadwinner; he worked as a scaffolder.

One day John was working on a two-storey scaffold and lost his balance; he fell to the ground and sustained a severe brain injury. The damage was devastating and John was unable to work again.

With the loss of the main breadwinner, Mary took on four part-time jobs in an attempt to earn enough to raise the children and pay the bills. John required (and still does) 24/7 care, and Mary took that on, too.

A two year legal battle ensued, following which John's employer was held liable for the accident and compensation of £62,000 was awarded and paid.

But while that might have seemed a tidy sum in 1982, is it really all that much for a working man's life? With the matter of compensation fi nally resolved, Mary heaved a sigh of relief and said, 'Thank God that's over! Now I can get on with my life.'

However, it wasn't quite as simple as that.

As the solicitor explained to her, the compensation was to be paid to John, and as John was non-compos mentis it would be paid instead into the Public Trust Fund. That's a £3 billion fund within a division of the Court of Protection, looked after by fund managers.

The next battle began.

John had not granted anyone Power of Attorney so Mary had no choice but to make an application for a Court Order, in those days known as a Receivership Order. This took almost another year and ran up costs approaching £2,000. Finally the Court, in their capacity as protector of the vulnerable, came to the decision that John might not have chosen Mary as his attorney when he had the chance, and so they appointed Mary together with a solicitor to 'oversee' matters.

What that meant was that Mary had to go to the solicitor to ask permission every time she wanted to buy John a winter coat or a pair of shoes. The annual costs (audit fees) of this receivership arrangement exceeded £800. The situation affected the family in many ways: for example, Mary wanted to move house to make life easier for them all, but the Court refused permission. Without Power of Attorney she was powerless to fi ght their decision and they had to stay put.

Some twenty years after the accident, with the children now grown up and Mary still taking care of John (who, rather oddly, can make a sandwich and a cup of tea, yet cannot speak), the Public Trustee was still managing the compensation fund and Mary still had to ask for handouts.

Then one day her luck changed. She took a phone call out of the blue from a solicitor, who asked her, 'Are you sitting down?'

'Why?' she asked in return.

'You've been left some money,' the solicitor said.

And sure enough, Mary had been left £110,000 by someone she had cared for (in one of her part-time jobs) but who she believed had died destitute.

Now the dilemma: Mary knows if she dies without a Will her estate will disappear into the Public Trust Fund. However, if she leaves her estate directly to the children, the Will could be contested by the State, as John still needs round the clock care.

At that point Affinity was called in and advised her to sever the joint tenancy and draft a Will (including a Power of Attorney) with a discretionary trust for John, with a letter of wishes. Mary was advised that even this structure could be contested.

Needless to say all this could have been avoided had John drawn up a Power of Attorney before the accident. You should think of these things as simple housekeeping matters, especially if you have dependents and/or a hazardous job or hobby. Failure to do so can have wide-ranging and long-lasting repercussions.

If anything contained in this true story concerns you or your loved ones, why not call us now on 0800 206 1851