Can my partner make decisions on my behalf without a lasting power of attorney in place?
Sponsored feature | Loren Adkin, private client solicitor, HCR Hewitsons
A power of attorney is a legal document that allows you to appoint one or more people (attorneys) to help you make decisions or make decisions for you on your behalf. This can include decisions about your property and finances and health and welfare matters.
There are a few powers of attorney which an individual can have in place. These include lasting powers of attorney for property and financial affairs, lasting powers of attorney for health and welfare and enduring powers of attorney. Enduring powers of attorney were replaced by lasting powers of attorney in October 2007, but if any enduring powers of attorney were made before this then they remain valid. That said, enduring powers only cover property and financial decisions and not health and welfare issues.
Powers of attorney are to be treated separate from your will. They are to be used during your lifetime and wills come into effect on death.
A commonly asked question is: ‘Will my spouse/civil partner be able to automatically make decisions on my behalf without a lasting power of attorney or enduring power of attorney in place?’ and the short answer is ‘no’.
If you are married or in a civil partnership, you may have assumed that your spouse/civil partner would be able to deal with your property and health decisions if you lost the ability to do so yourself, however, this is not the case. If your spouse/civil partner is your next of kin, this does not automatically grant them the right to manage your affairs.
A spouse, family member or other individual would still require legal authority to act on your behalf, by virtue of a lasting power of attorney or enduring power of attorney.
If you have lost mental capacity and do not have a valid lasting power of attorney or enduring power of attorney in place then your spouse, family members or other individual will have to seek permission of the Court of Protection for legal authority to act on your behalf.
We recommend you have lasting powers of attorneys in place and subsequently registered while you have adequate mental capacity to save a lengthy and costly process of making a Court of Protection application for a deputyship order. Preparing lasting powers of attorney now also allows you to choose who makes such key decisions on your behalf and when and how they act. Once they have been registered they are readily available for your spouse or other individuals when required.
For more information, contact Loren Adkin on 07570 683656 or email ladkin@hcrlaw.com.
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