When Your Marriage Can’t Save You, But A Lasting Power of Attorney Can

Planning for the future as we get older is a vital part of life – that’s why many of us provide for ourselves with pensions and Wills. However, one of the most important tools available to us is often neglected: Lasting Powers of Attorney.

According to CanadaLife UK, 78% of UK adults don’t have a Lasting Power of Attorney (LPA) in place, including 77% of those over 55 – the very people who need this protection most.

An LPA allows you to choose people you trust to make decisions about your care, treatment and daily life if you lose the ability to decide for yourself. Without one, your loved ones may be unable to help you when you need it most, even in urgent situations – just look at the appalling situation faced by Kate Garraway when her husband became ill, because they hadn’t completed their LPAs.

The Statistics That Should Concern Us All

Despite the publicity that surrounded Kate’s predicament, the numbers continue to paint a stark picture. Nearly 982,000 people currently live with dementia in the UK, and this figure is likely to rise to 1.4 million by 2040. Meanwhile, one in three people will care for someone with dementia in their lifetime.

Despite these sobering statistics, LPA registrations only passed one million for the first time in 2023 – representing just a fraction of those who could benefit from this powerful protection. The gap between those who need an LPA and those who actually have one is enormous, leaving thousands of families facing crisis.

A Dangerous Myth: “My Spouse Can Handle Everything”

Here’s the shocking truth that most couples don’t realise: if you’re married or in a civil partnership, your spouse does NOT automatically have the legal right to make decisions about your health, welfare, or finances if you lose mental capacity.

This misconception is probably the biggest reason why so many people avoid setting up LPAs. They assume their husband or wife will naturally step in and handle everything. But the law doesn’t work that way.

The most difficult part? LPAs can only be set up while you still have mental capacity – once that’s gone, it’s too late.

Without an LPA, Your Spouse CAN’T:

• Make medical treatment decisions on your behalf,
• Access your bank accounts to pay for care,
• Speak to doctors about your condition or treatment options,
• Make decisions about where you live or what care you receive,
• Handle your financial affairs or pay your bills, or
• Make choices about your daily routine or personal care.

Kate Garraway discovered this harsh reality when her husband Derek Draper was hospitalised. Despite being married, she found herself unable to make crucial decisions about his care, or pay their mortgage, or to manage his affairs at all when he needed her most.

What Happens Instead

Without an LPA, your spouse faces the following challenges:

• they can watch helplessly as medical professionals and social services make decisions about your care without any family input; and
• they’ll have to apply to the Court of Protection to be appointed as your deputy to manage your property and financial affairs.

Imagine lying in hospital needing urgent care decisions while your partner is stuck in legal limbo, unable to access your accounts to pay for any of your daily expenses or even to speak to your doctors about your condition.

Should You Set Up an LPA?

Your simple guide to making that decision:

What is a Health and Welfare Lasting Power of Attorney?

A Health and Welfare LPA is a legal document that lets you appoint one or more people (known as attorneys) to make decisions about your personal health and care if you lose the capacity to do so yourself in the future.

It covers extremely personal decisions such as:

• Where you live and who cares for you,
• What you eat and wear,
• Your daily routine,
• The medical treatment you receive,
• Whether to continue or refuse life-sustaining treatment, as well as
• Your end-of-life care and preferences.

By creating a Health and Welfare LPA, you ensure that your actual preferences about your personal care are known and legally recognised, and that someone you trust is empowered to speak up on your behalf.

What is a Property and Financial Affairs Lasting Power of Attorney?

A Property and Financial Affairs LPA allows you to appoint one or more attorneys to make decisions about your money, property, and business affairs if you lose the capacity to manage them yourself.

It covers crucial financial decisions such as:

• Managing your bank accounts and savings,
• Paying bills, mortgage payments, and everyday expenses,
• Dealing with benefits, pensions, and insurance,
• Buying and selling property on your behalf,
• Managing your investments and business interests, and
• Making decisions about your care home fees and funding.

This type of LPA can actually be used while you still have mental capacity if you choose to give your attorney permission – for example, if you’re physically unable to get to the bank, or just want help managing your affairs.

Without a Property and Financial Affairs LPA, your spouse or family cannot access your accounts, pay your bills, or manage your property – even in emergencies.

Do You Need Both Types of LPA?

Most people benefit from having both a Health and Welfare LPA and a Property and Financial Affairs LPA in place, as they work together to provide complete protection whatever happens to you.

You can appoint the same person as attorney for both types of LPA, or choose different people depending on their skills and your preferences. For example, you might choose a family member who understands your values for health decisions, and a financially-savvy friend or relative for property matters.

Remember: these are powerful legal documents that affect almost every aspect of your life. You should exercise extreme caution when setting them up and be very careful about who you give these powers to.

Why Professional Legal Advice Makes All the Difference

Creating an effective LPA involves much more than simply filling out forms. The stakes are too high for a DIY approach. Common problems with self-prepared LPAs include:

• Unclear language that can be misinterpreted when crucial decisions need to be made;
• Failing to address any challenges you might face;
• Missing crucial legal requirements that could invalidate the entire document;
• Not properly reflecting your personal circumstances and wishes; or
• Inadequate guidance for your chosen attorneys about their powers and responsibilities.

Our experienced solicitors understand these complexities and will ensure your LPA gives you the protection you need when you need it most.

Don’t Become Another Statistic

The 37% surge in LPA registrations in 2023 shows that more people are recognising the importance of planning ahead. Yet with 78% of adults still going through life without this crucial protection, there’s clearly more work to be done.

Don’t let the myth that “your spouse can handle everything” leave your family vulnerable. The law requires proper legal documentation, not just good intentions. An LPA helps give you the confidence that your wishes will be followed and that someone you trust will be there to make the right decisions on your behalf.

Ready to Take the Next Step?

Don’t delay – get in touch with our experienced Wills and Probate team today. We’ll guide you through the entire process and ensure your LPA reflects your wishes whilst meeting all legal requirements.

Contact us now to discuss your LPA – because planning ahead protects both you and those you care about most.