Do spouses automatically have power of attorney?
Posted on 17th March 2024
Many people believe that when they get married, their spouse automatically has the power to make decisions on their behalf, however, this is not the case. Spouses do not automatically have power of attorney over each other's finances or health decisions. To learn more about the differences in the legal powers granted by marriage, and by a power of attorney, read on, where our Lasting Power of Attorney Solicitors in Preston have answered some common question, below.
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Does a Spouse Need a Lasting Power of Attorney to Act on Your Behalf?
For the large majority of legal and financial matters, if you wish to act on behalf of someone else, a Lasting Power of Attorney is required. This is not automatically granted to spouses through marriage, so many people opt to appoint their spouse as their attorney in a Lasting Power of Attorney.
Sadly, many people presume their spouse can simply step in to make decisions on their behalf, not realising until it’s too late that this is not how the law operates. In cases where spouses have not made Lasting Powers of Attorney in favour of each other, the surviving spouse will need to apply to the Court of Protection to be appointed as a Deputy for their incapacitated spouse. Applications to the Court of Protection can be expensive, and a time-consuming procedure, causing stress and anxiety for the applying spouse.
What is a Lasting Power of Attorney?
A Lasting Power of Attorney (LPA), which replaced the Enduring Power of Attorney (EPA) on 1st October 2007, is a legal document that can be put in place whereby the Donor appoints an Attorney or Attorneys to make decisions on their behalf in relation to Property and Financial matters and/or Health and Care decisions.
The Financial Decisions LPA can be used by your appointed Attorneys to make decisions about things such as:
Paying your Mortgage
Investing Money
Paying Bills
Arranging repairs to property
The Health and Care Decisions LPA can be used by your Attorneys to make decisions about things such as:
Where you should live
Your medical care, including whether or not you receive life sustaining treatment (if you give your attorneys authority in the LPA document)
What you should eat
Who you should see and interact with
What kind of social activities you should do
It is important to note that just because your appointed Attorneys can make decisions about the things listed above, you do not necessarily have to let them make all the mentioned decisions, and you can include specific instructions or restrictions when you make the LPAs, depending on your specific wishes. To learn more about this, contact us online here.
Power of Attorney vs. Spouse’s Rights:
Generally speaking, a Lasting Power of Attorney is the only way in which a person has legal authority to make decisions on behalf of another, but this is not always the case. In some cases, a person may have appointed somebody to discuss health matters with their healthcare provider, such as their GP. This would not automatically be their spouse or even a relative, and it is likely that the Healthcare provider would ask for sight of a Health Lasting Power of Attorney at a later date, such as when needing a decision to be made about the person’s care, rather than simply releasing information to a nominated person.
When it comes to property and assets, it can be more complex. For example, if a property is owned in your sole name, then the attorney under your Lasting Power of Attorney can be authorised to manage your property (at your direction whilst you have capacity, or on your behalf if you do not), including a sale of the property, repairs or renting this out (as long as there are no restrictions on this in the Lasting Power of Attorney document).
If the property is owned by more than one person, then the situation can be more complicated. In some cases, the owner who has capacity may be required to obtain the signature of the incapacitated person on documents. As that person has no capacity, this would not be possible. Therefore, the person without capacity would need to have someone appointed to represent their interest. In cases where the property is jointly owned by spouses, they will quite often appoint each other as Attorneys and therefore the co-owner and attorney could be one and the same, although in certain cases an independent third party may be required to sign off the sale of any property to property the incapacitated party.
How can I make Lasting Powers of Attorney?
If you are looking to appoint your spouse as an attorney in order to ensure that they have legal authority to assist in the management of your affairs, then do not hesitate to contact our Lasting Power of Attorney Solicitors in Preston learn more about how we can help you. Every person's circumstances are different and you should therefore always seek specialist legal advice to ensure you are receiving advice tailored to you.
How do I appoint my spouse as my Attorney?
If you are looking to appoint your spouse as your Attorney, then you should arrange Lasting Powers of Attorney through a qualified, SRA-regulated Solicitor today.
Here at MG Legal, our designated team of LPA Solicitors offer LPA drafting services at a clear fixed-fee rate, with the option to create mirrored Lasting Powers of Attorney as a couple at a discounted rate.
Why choose MG Legal's LPA Solicitors in Preston:
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Make a Lasting Power of Attorney with MG Legal’s Lasting Power of Attorney Solicitors in Preston:
Here at MG Legal, our team are experts in preparing and registering Lasting Powers of Attorney, both for Health and Care decisions, and those for Property and Financial decisions.
Our experts are happy to advise you on restrictions that you, as the Donor, may wish to impose upon your Attorney, and what conditions can be imposed on the management of your affairs to help you stay in control of your life. Our bespoke Lasting Power of Attorney services ensure that your arrangements are unique to you, and your specific wishes, or your wishes as a couple. To learn more about making a Lasting Power of Attorney, and how MG Legal can help, see this here.
Or, simply contact us online, here, to speak to a specialist Lasting Power of Attorney Solicitor within one working hour.
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