do I need a lasting power of attorney if I'm married?
Yes, you do. Being married doesn’t give you any legal right to manage your husband or wife’s money, or to make decisions about their health and care, if they lose the mental capacity to decide for themselves. A lasting power of attorney (LPA) is what gives you that authority. Without one, you may have to apply to the Court of Protection to become their deputy, which is slow, costly and a lot of stress at the worst possible time.
This is probably the most common thing people assume they don’t need. “We’re married, it’s all joint, it’ll be fine.” It often isn’t.
what can’t I do without an LPA?
Say Rob and Sue, from Worksop, have been married 40 years. Rob has a stroke and can no longer understand or manage his affairs.
Sue can carry on using their joint bank account, most of the time. But she can’t touch anything in Rob’s name alone. That includes his personal current account, his savings, his ISAs (which are always in one person’s name) and often his pension. She can’t deal with his bills or cancel his direct debits on his behalf.
If they own their house jointly and Sue needs to sell it, maybe to move somewhere smaller or closer to family, she can’t, because Rob can’t sign. Being his wife doesn’t change that.
what about health decisions?
Doctors will usually talk to Sue and take her views into account. But the final say on Rob’s treatment and care sits with the professionals, who decide what they think is in his best interests. Sue can’t insist. If there’s a disagreement about where Rob should live or what care he gets, she has no legal standing to make the call.
what happens if we don’t have one?
Sue would need to apply to the Court of Protection to be appointed Rob’s deputy. It involves forms, fees, a long wait, and ongoing supervision and reporting once it’s in place. In the meantime, bills pile up and money can be stuck.
And you can’t make an LPA once you’ve lost capacity. That’s the catch. It has to be done while you’re both well.
what are the two types?
There are two, and they do different jobs:
- Property and financial affairs. Covers bank accounts, bills, savings, pensions, and selling a house. You can let your attorneys use it as soon as it’s registered, with your permission, which is handy if you just need help.
- Health and welfare. Covers decisions about medical treatment, care, and where you live. It can only be used once you’ve lost capacity to make that decision yourself.
Most couples do both, each. That’s four documents for a couple. They’re £125 per document with me, and you can see how it all works on my lasting power of attorney page.
do we have to use each other as attorneys?
No. Most married couples name each other first, and then one or more of their children as back-up, or alongside. You choose who you trust. You can also say how you want them to act, together or separately, and leave guidance on your wishes.
what happens after we sign?
The LPA has to be registered with the Office of the Public Guardian before anyone can use it. That takes time, so it’s much better to register it now, while everything’s calm, rather than wait until you need it. There’s a registration fee payable to the Office of the Public Guardian. I’ll tell you the current amount when I visit, as it changes.
is it the same as a will?
No. A will only works after you’ve died. An LPA only works while you’re alive. They cover completely different times, which is why I’d usually suggest looking at both together.
what if we’re not married?
Then you’ve even fewer rights without one. An unmarried partner has no automatic standing at all. I’ve written about that in what if I’m not married and my partner dies.
If you’d like to get your LPAs done, I can do them at the same home visit as your wills. I’ll fill in the forms with you, explain each part, and make sure they’re signed and witnessed in the right order. Give me a call to arrange a time.
This is general information, not legal advice for your situation. I’m not a solicitor — I’m a will writer, and I’ll tell you if you need one.