Divorce impacts all aspects of life and requires a re-balancing of affairs, so updating a will and considering the status of an LPA after divorcing is vital. A lasting power of attorney (LPA) allows an individual to appoint one or more people to make decisions relating to finances and health and welfare on their behalf if they need help or lose capacity to do so themselves.
Divorce impacts all aspects of life and requires a re-balancing of affairs, so updating a will and considering the status of an LPA after divorcing is vital. A lasting power of attorney (LPA) allows an individual to appoint one or more people to make decisions relating to finances and health and welfare on their behalf if they need help or lose capacity to do so themselves.
If you have a family issue and you require legal advice to understand your options, contact specialist family law solicitor Rebecca Calden-Storr of Stowe Family Law. With over 20 years’ experience, she is regularly instructed on matters arising from relationship breakdown, including divorce, financial disputes, complex assets, and disputes relating to children.
The two types of LPA
- Property and Financials Affairs LPA replaced Enduring Power of Attorney in 2007. An LPA allows an attorney to operate your bank accounts and manage your finances
- Health and Welfare LPA empowers an attorney to decide where you live and what kind of medical treatment you should receive
It is up to the individual to decide whether they wish to have both types of LPA or just one. LPAs only become relevant if you become unable to make decisions about your finances and welfare. Attorneys are only able to act in accordance with the power conferred on them by the LPA. So if the donor (person making the LPA), limits the attorneys power in any way, it follows that they can only act within the constraints of such limitations. At all times, the attorney has a legal duty to act in the best interests of the donor.
If you don’t have an LPA in place at the time of losing capacity, then your family or next of kin will need to apply to the Court of Protection if they need to make any decisions on your behalf.
Does separation affect an LPA?
Unlike divorce, separation has no effect on an LPA. If you have separated and are yet to divorce, or are not married to your ex-partner, you will have no other option but to revoke your ex’s appointment if you no longer wish them to act as your attorney. If the LPA appoints other attorneys or replacements, you can execute a partial revocation and remove your partner’s name as attorney with the other appointments remaining valid. This means the LPA can continue. However, if your ex is the sole attorney, the LPA will terminate on revocation, and you would need to execute a new LPA.
What are the effects of divorce on a lasting power of attorney?
If you have appointed your spouse as your attorney under an LPA, if you divorce, their appointment will end on the dissolution of your marriage or civil partnership. The only exception to this rule is if your LPA states that your spouse’s appointment must not be revoked if you divorce. If there is no such clause within your LPA allowing them to remain as your attorney after divorcing, then their appointment will terminate.
Will divorce end my LPA?
If your spouse was the sole attorney and no replacement attorneys were named when completing the original application, then the LPA will be cancelled, and you will need to create a new one from scratch.
If your spouse was named amongst multiple attorneys, and the others were appointed “jointly”, then your LPA will be cancelled, and you will need to create another.
As stated above, if your spouse was named as a sole attorney, but you also appointed replacement attorneys, then your replacement attorneys would step in to act. Your LPA, therefore, continues to function with the replacements.
If your spouse was one of multiple attorneys, and they were appointed “jointly and severally”, your ex spouse’s appointment will be revoked, but the other attorneys will be able to continue acting without them. Your LPA will continue to function with the remaining jointly and severally appointed attorneys.
Can my ex refuse their appointment as attorney prior to divorce?
Your spouse can “disclaim” their appointment as attorney under the LPA prior to divorce. To claim this, they must complete form LPA005 which is available from the gov.uk website. They will need to give the original signed form to you and copies to any other named and replacement attorneys. If the LPA is registered with the Office of the Public Guardian (OPG), your spouse will need to send a copy of the form to them, together with any copies of the LPA.
Whether the disclaimer revokes the whole LPA, will depend on whether you appointed your ex jointly or jointly and severally, and whether you named any replacement attorneys.
Can I end my ex’s appointment as attorney or revoke my LPA before divorce?
You can revoke your entire LPA and make a new one or revoke your ex’s appointment as attorney at any time by signing a Deed of Revocation. To revoke a registered LPA, notice must be given to the Office of the Public Guardian. Notice will also need to be provided to any other attorneys or replacement attorneys, if applicable.
How long does an LPA last?
An LPA lasts from the point of registration until any of the following occurs:
- The donor divorces and their ex was appointed as sole attorney with no replacement attorneys
- The donor divorces and their ex was appointed together with other attorneys on a joint basis and no replacements were appointed
- The donor revokes the LPA in its entirety
- All the attorneys and replacement attorneys have died, lost capacity, or do not wish to act
- The donor dies
It cannot be stressed enough that individuals should appoint attorneys who will hopefully survive their lifetime, because if there are no living attorneys or replacements, the LPA can no longer be used.
What is the position for Enduring Power of Attorney?
Before 1st October 2007, you could put an Enduring Power of Attorney (EPA) in place to appoint someone to manage your finances if you became incapable of managing them yourself. Although new EPAs can no longer be made, existing EPAs continue to be valid.
The Enduring Powers of Attorney Act 1985 makes no provision for the situation where the parties were married when the EPA was made but subsequently divorce. As this situation is not covered, if you have made an EPA and are now getting divorced, you may want to consider revoking it, so the position is clear. You can then replace it with a new LPA.
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