Chorley solicitor discusses if you need a Lasting Power of Attorney if you’re married

 What is an LPA

What is an LPA?

The gov.uk website defines an LPA as: “a legal document that lets you (the ‘donor’) 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 can’t make certain decisions for yourself (you ‘lack mental capacity’).”

Rosemary Johns, Partner and Private Client Specialist based at Birchall Blackburn Law’s Chorley branch, advises that: “A Lasting Power of Attorney (LPA) is a very important and useful document to have in place for anyone, regardless of their age.  It is a safeguard in case anything ever happened in the future which would render an individual to lack capacity to make certain decisions about property and financial affairs and or health and welfare matters. This could be due to the onset of dementia, or an unforeseen life-changing accident.

The two types of LPA

There are two different types of LPA, one which deals with property and financial affairs and one which deals with decisions about health and welfare, e.g. medication, residence, life sustaining treatment.  Both are equally as important to put in place when planning for the future, even if you are married or in a civil partnership.

A Property and Financial Affairs LPA enables you to appoint one or more Attorneys to make financial decisions on your behalf.  An attorney can be a trusted friend or family member, or someone acting in a professional capacity, who you can rely on to act in your best interests in terms of any financial decisions which you may not be in a position to make yourself.

An Attorney acting under a Property & Financial affairs LPA can make decisions in respect of buying and selling your property, paying your bills, managing your bank and savings accounts and investments, but is not allowed to spend your money for their own, or anyone else’s benefit without permission from the Court, with the exception of making limited seasonal gifts which you would normally have made yourself.

An Attorney acting under a Health & Welfare LPA can make decisions about your health and medical care.  This type of LPA also enables your Attorney(s) make decisions about where you should live and, in some cases, in respect of life sustaining treatment.  It can also cover decisions about what you should eat, what you should wear, and who should have contact with you. Your Health and Welfare attorney(s) can only make these types of decisions for you if you are deemed to lack capacity to make the particular decision for yourself.

Powers of attorney

Should I make an LPA if I’m married?

Yes! It is a common misconception that if you are married or in a civil partnership, or even co-habiting, that your spouse or partner will automatically have authority to make financial or health and welfare decisions on your behalf if you lack capacity to do so in the future. 

The only way to ensure this authority is in place is to make LPA’s and appoint each other as Attorney, either alone, or jointly with others.

What if I don’t have an LPA in place?

If you have not made LPA’s, and subsequently lack capacity to make particular decisions for yourself, for the reasons outlined above, it may be too late for this to be done, and an application may have to be made to the Court of Protection instead, which is a costly and lengthy process.

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