Around 350,000 to 400,000 people lose the capacity to make decisions for themselves every year. That equates to about 1 in 150 of the adult population.
This isn’t just due to age-related conditions but can be because of mental health issues or unexpected injury or accident. As you know life sure does have a habit of throwing the unexpected at us.
An estimated two thirds of all adults in the UK haven’t set up LPA’s. As a divorcee or if you are in the process of getting divorced, not having an LPA or not having re-visited an existing LPA can cause specific issues.
This article explores the implications.
What is an LPA?
An LPA is a legal document that gives trusted individuals (known as ‘attorneys’) the power to make decisions for you if you’re unable to do so.
Having an LPA ensures that you attorneys can act swiftly on your behalf and in your best interests, without the need for lengthy court procedures.
There are TWO types of LPA:
- Property and Financial Affairs LPAs – Helps manage financial matters like paying bills, accessing bank accounts, or selling property
- Health and Welfare LPAs – Covers decisions on your medical care, daily routines, and life-sustaining treatments
Facing the possibility of losing capacity can be tough, especially during emotionally taxing times like divorce. But taking this step provides crucial safety and reassurance.
“Why should I?”
If you’re NOT yet divorced and already HAVE an LPA
During a divorce, your soon-to-be ex-spouse may still hold authority over important decisions if they’re listed as your attorney. You may be comfortable with this, but it bears consideration. Do you still trust your ex-partner to act in your best interests? Do you feel comfortable with them making crucial medical and financial decisions on your behalf if you were unable to do so? Revoking your current LPA ensures that your ex-spouse no longer has control over decisions related to your health, welfare, property, and finances, giving you back control over who acts on your behalf during this sensitive time. You can then structure a new LPA with attorneys whose interests align more closely with your own.
If you’re NOT yet divorced and DON’T have an LPA
Without an LPA, even though you are going through a divorce, your ex-partner may still be consulted as the “next of kin,” which may lead to medical decisions that do not align with your personal wishes. Furthermore, although your spouse doesn’t automatically have full legal authority over your finances, they could still be involved if they share joint assets with you, such as a joint bank account or jointly owned property. In these cases, they might continue to manage or access joint finances in a way that is contrary to your wishes. Drawing up an LPA would address both these issues and provide peace of mind.
If you ARE DIVORCED and HAD and LPA
If your spouse was appointed as your attorney, their appointment is automatically revoked upon divorce unless your LPA explicitly states otherwise. This means that if your ex-spouse was your sole attorney, your LPA could become invalid, leaving you without a trusted individual to make decisions on your behalf. If you appointed more than one attorney, including your ex, the status of that LPA depends on whether you appointed the attorneys to act ‘jointly’ of ‘jointly and severally’. If your attorneys were instructed to act jointly the LPA will lapse because under its terms the remaining attorney cannot take decisions without your ex’s agreement. If, however, you appointed your attorneys to act jointly and severally the LPA will remain effective as the remaining attorneys are able to act in the absence of your ex. If you wish, you can then appoint replacements for your ex and the LPA will remain operative.
If you’re DIVORCED and NEVER HAD an LPA
If you’ve already divorced and never had an LPA your ex-partner has no legal entitlement to make medical or financial decisions on your behalf. Yet, it’s crucial to consider establishing an LPA. Being single, you may want to ensure your future decisions are protected by individuals who genuinely align with your best interests. This may be family but could be trusted friends. Creating an LPA now ensures the right people are making decisions for you should the unexpected happen and best protects your personal and financial interests.
How do I Set Up an LPA
Your 5-Step Guide
STEP 1: Trusted Conversations: Start by discussing your decision with family, friends, or a solicitor if your family dynamics are complicated and you feel you need expert guidance. Choose someone who understands your values and will act in your best interests. This might take several conversations.
STEP 2: Choose the Right LPA Type: We would recommend BOTH the Health & Welfare AND the Property & Financial Affairs LPA, but it might depend on your circumstances.
STEP 3: Understand the Costs: Registering an LPA costs £82 per LPA. Solicitor fees are typically around £1,000 for both types of LPA, far less than potential court costs later, which can run into several thousands.
STEP 4: Complete the Forms: If you are sorting the LPA’s yourself then visit the Office of the Public Guardian (link below) to download the forms or complete them online. You’ll need to:
- Get them certified by an independent certificate provider
- If you’re getting legal assistance then typically your solicitor will complete and submit the forms on your behalf
STEP 5: Register the LPA: Submit the forms to the Office of the Public Guardian for registration. This process can take up to 10 weeks.
Navigating divorce is complex, and ensuring your future decisions are protected is crucial. If you need guidance on setting up or updating a Lasting Power of Attorney, we can connect you with one of our trusted solicitor partners. Their expertise ensures your LPA reflects your wishes and safeguards your best interests.