Do spouses need an Enduring Power of Attorney?
When you attend with your solicitor to draft your Will, they will often recommend that you put an Enduring Power of Attorney (EPA) in place as well. This document can become crucial should you ever lose the capacity to make decisions for yourself. If you don’t have an EPA in place and you then lose capacity, the only alternative for your family is to proceed with an expensive and time-consuming controllership application before the Court.
While many believe that they won’t need an EPA, because they have a spouse who would be able to make decisions and manage their affairs on their behalf, this presumption is incorrect.
Whilst a married couple have certain rights and responsibilities between one another under provisions in family law, these responsibilities do not extend to the broad powers bestowed under an Enduring Power of Attorney. A spouse has no automatic entitlement to make legal decisions on behalf of their spouse.
A common issue which can arise is when one party to a marriage has a bank account in their sole name and they lose capacity at some point. If the other spouse (who retains mental capacity) attempts to access this account, the bank can “freeze” the account as a safety measure, which can result in direct debits being stopped. This is a protective measure to prevent one spouse from misappropriating or misusing the funds belonging to the other.
If you are married or in a relationship, you do not have to appoint your spouse as your attorney – if they are an older person, or in ill-health, then it might not be desirable to appoint them as your attorney. Instead, you can appoint anyone that you can trust to act as your attorney – this can be a friend, a neighbour, or a relative. The donor’s children are often a popular choice to be nominated as an attorney.
You can also appoint more than one person to be your attorney, and you can tailor their powers to suit your needs. For example, if you appoint your attorney jointly, then they can only act in tandem with each other – however, if you appoint them separately, then they could act independently of each other, and deal with your affairs without referring to the other attorney. This ultimately depends on how you expect the parties to interact with each other. You can also limit the powers of the attorney to only deal with certain matters, e.g. certain property or certain bank accounts, or one attorney could deal with your business interests, and another with your personal finances and property.
It is also possible to create safeguards in your EPA to ensure that it can only be registered when you have lost capacity. For example, you can make it compulsory for the attorney to obtain a medical diagnosis that you have lost capacity before they can register the document. A solicitor is best placed to tailor an EPA to your needs whilst ensuring that the document is kept in accordance with the relevant legislative requirements.
Whilst the prospect of losing mental capacity may seem like a remote possibility, having an EPA in place is a sensible solution to a potential issue that may arise in the future. Having an EPA provides peace of mind for you and for your family. Our expert team of Private Client practitioners would be happy to advise you in relation to getting an EPA, the conditions in which it can be registered, and the powers which is confers.