Separation and Lasting Powers of Attorney

Eleanor Ward, Solicitor at Legal Matters, joins us as a guest blogger to explain ‘Separation and Lasting Powers of Attorney’ – what a Lasting Power of Attorney means, and the impact if you divorce or separate.

Writing a Will is rarely at the top of anyone’s to do list. To be honest, it often isn’t even at the bottom. But whilst the benefits and importance of enshrining your wishes and arrangements in a legal document following your death are well documented, the need to also make arrangements should anything happen to you during your lifetime is less talked about.

Lasting Powers of Attorney (LPAs) are very much the bridesmaid to their posthumous counterpart, the Will. But these documents are just as important, and never more so than following a breakdown of a relationship. Not just so someone will have your best interests at heart should you fall ill or be in an accident, but also so the important people in your life know who should be making the big decisions if you’re not able to. If you’ve lost capacity without one, your loved ones may struggle to gain control of your affairs.

So, what is a Lasting Power of Attorney?

It’s a way of giving legal authority to someone you trust to make decisions on your behalf should you be unable to make them yourself (due to mental or physical incapacity). That could be a temporary or permanent loss of capacity; from two broken wrists, all the way through to a coma, stroke or dementia/Alzheimer’s.

There are two types of LPA – one for health and care decisions and the other for financial and property decisions. Under the former, your chosen attorney can make decisions about your medical care and where you live, whilst under the latter the choices will be around accessing monies in your accounts, dealing with your property and paying bills.

Traditionally, an individual often appoints their partner in the role of attorney. But what if this is not an option? Any children over the age of 18 may also be appointed, however you may feel that the responsibility of dealing with your finances or medical decisions is too great to put upon your kids (especially as your incapacity itself may already be an upsetting and stressful time for them).

In the event that you have Lasting Powers of Attorney in place prior to the breakdown of a relationship, the rules are pretty clear. Following divorce or the dissolving of a civil partnership, your ex-spouse or partner will be removed from their appointment as your attorney. If you had only appointed your spouse/partner as your sole attorney, or if you had appointed them to act jointly (as opposed to jointly and severally) with another, then your existing LPA will be deemed null and void.

What to do

Having a trusted individual(s) is the most important thing because allowing another to legally speak on your behalf is a huge responsibility. Your appointed attorney could even have the right to sell your home for you, such is the scope of power that is delegated. Friends and family members are often a preferred choice. However, if following a relationship breakdown, you are no longer left with anyone you would trust enough to appoint, you can always have a professional attorney to act on your behalf.

In the event that you do not have your own LPA but were no longer able to communicate your own wishes, the court would step in to appoint someone to be your voice. However, this process (known as a ‘Deputyship’) is a long and protracted one, which is up to ten times more expensive than putting an LPA in place yourself. In addition, the court would have the ultimate say over who was to be appointed in this role.

Legal documents are an important way of providing clarity in otherwise murky situations. It’s a grim truth that accidents or illnesses can happen at any age, which is why putting together an LPA is something that everyone should consider, regardless of age.