Does my spouse automatically have Power of Attorney?
Planning for the future is not something we should consider when we are older. None of us can predict when illness, an accident or a change in circumstances might affect our ability to make decisions for ourselves. A Lasting Power of Attorney (LPA) can provide invaluable peace of mind by ensuring that someone you trust can make important decisions on your behalf if you lose the capacity to do so yourself.
There are two types of LPA: a Property and Financial Affairs LPA and a Health and Welfare LPA. You can choose to put one or both in place depending on your circumstances and wishes.
A Property and Financial Affairs LPA allows your chosen attorney or attorneys to make decisions relating to matters such as managing bank accounts, paying bills, dealing with investments or managing and selling property. A Health and Welfare LPA covers decisions about matters including medical treatment, care arrangements and where you live. Unlike a Property and Financial Affairs LPA, it can only be used if you no longer have the mental capacity to make the relevant decisions yourself.
Does my spouse automatically have power of attorney?
A common misconception is that a spouse or civil partner will automatically have the legal authority to step in and make decisions if their partner loses capacity. Unfortunately, this is not the case.
Being married or in a civil partnership does not, by itself, give one spouse the automatic right to manage the other’s finances, access accounts held solely in their name or make decisions on their behalf. This can come as an unwelcome surprise at a time when a family is already dealing with difficult circumstances.
For this reason, it is important for couples to consider putting LPAs in place and, at the very least appoint each other as attorneys. Having the appropriate arrangements in place can help ensure that decisions can be made promptly and by someone you know and trust.
Who should you appoint as your attorney?
While spouses and civil partners will often choose to appoint one another, it is also advisable to consider appointing additional or replacement attorneys.
Your attorneys could include adult children, other family members, close friends or, in some circumstances, a professional. The important consideration is that you choose people you trust to act in your best interests and who will be able to carry out the role responsibly.
If you appoint more than one attorney, you will also need to decide how they should made decisions. Careful thought should therefore be given to whether your chosen attorneys will be able to work effectively together and what might happen if one of them is unable or unwilling to act in the future.
What happens if you lose capacity without an LPA?
Without an LPA, family members may need to make an application to the Court of Protection before they can manage certain affairs on your behalf. A spouse, civil partner or child does not simply acquire the necessary legal authority because they are your closest relative.
An application to the Court of Protection for someone to be appointed as a deputy can be more time-consuming and costly than putting an LPA in place in advance. The Court will also need to determine whether the proposed deputy is suitable to act. This can add further pressure for loved ones at what may already be a stressful and difficult time.
Importantly, putting an LPA in place allows you to decide who would like to act for you and how you would like certain decisions to be approached. If you wait until you have lost mental capacity, it will be too late to make an LPA yourself.
Planning ahead with a Lasting Power of Attorney
LPAs are not simply something to consider later in life. They can form an important part of planning for the future at any age, particularly when buying property, starting a family, running a business or simply wanting to ensure that appropriate arrangements are in place should the unexpected happen.
Putting LPAs in place now is a simple but important step that can protect your wishes, provide certainty for your loved ones and give you greater control over your future.
Thomas Woodlee is a Senior Associate Solicitor in the Private Client Team at Barker Gotelee Solicitors in Suffolk.
For more information on our range of legal services, including advice regarding Lasting Powers of Attorney, please call the Private Client Team on 01473 611211 or fill out our enquiry form.
