Divorce can affect your Lasting Power of Attorney (LPA), potentially leaving you without a trusted decision-maker when you need it most. It’s crucial to understand the steps you can take to protect your future and ensure that your wishes are upheld during this transitional period.
What is a Lasting Power of Attorney?
A Lasting Power of Attorney is a legal document which enables you to appoint people who you trust as your Attorneys to make decisions on your behalf in the event you are no longer able to do so.
What are the different types of LPA?
There are two types of LPA:
- Property and Financial Affairs LPA
This LPA covers decisions your Attorney may need to make concerning your property and finances.
Responsibilities include tasks such as managing your bank account or selling your home and investing the proceeds to provide an income in the event you need to go into a residential care home.
- Health and Welfare LPA
Under this LPA, unless you add restrictions, your Attorney will have authority to make all personal welfare decisions on your behalf, except for:
- Life-sustaining treatment, unless you have expressly authorised this; and
- Situations where you subsequently make an Advance Decision (Living Will) to refuse treatment.
These decisions can only be made on your behalf if you lack the capacity to make them yourself.
How can an LPA be terminated?
An LPA can be terminated in several ways:
- A Deed of Revocation signed by the donor (i.e. the person who the LPA relates to) or express revocation by the Court of Protection on the donor’s behalf;
- The Attorney can disclaim their appointment under the LPA;
- By death, bankruptcy, or an Attorney’s incapacity; and
- The breakdown of a marriage or civil partnership between the donor and Attorney.
This article considers the impact of the dissolution or annulment of a marriage or civil partnership and the considerations that need to be made.
Terminating an LPA after a divorce
Unless the contrary is specified within the LPA, the dissolution or annulment of a marriage or civil partnership between a donor and Attorney will terminate the appointment of the ex-spouse as an Attorney.
If an ex-spouse is appointed alongside other Attorneys , the appointment of all Attorneys may also be terminated depending on the structure of the LPA, potentially leaving you without a valid LPA.
When an individual is going through a divorce, they should also seek advice on how the divorce will impact their LPA as it may be that a new LPA will need to be prepared. Without a valid LPA, those closest to you could be faced with an application to the Court of Protection to give them authority to act on your behalf as a court-appointed Deputy. The application process for being appointed as a Deputy can take, on average, up to 6 months to obtain a full Deputyship Order, although it can take longer, and the costs are higher than for the LPA process. The choice of who to appoint to act in your best interest as a Deputy rests with the Court, not with you.
How TWM can help you
At TWM, our specialist solicitors have extensive experience in crafting bespoke LPAs to meet the unique needs of individuals.
If you have any questions or would like to discuss making an LPA, please contact our expert Private Client team for an initial no-obligation consultation.
