A. Speaking to clients about this on a regular basis, I find there is a common misconception that a spouse would have an entitlement to ‘step in’ and act on your behalf.
In fact, there is no automatic legal right for your spouse to make decisions about your property and affairs if you lose your mental capacity. Whilst a spouse may be able to access joint accounts, they will not be able to make decisions about or manage any accounts/investments/properties held in your sole name or jointly owned properties unless there is a suitable, registered Lasting Power of Attorney (LPA) in place. An LPA is a document that you need to put in place for yourself and must be completed whilst you have the mental capacity to do so. If there is no LPA in place, your spouse may need to the Court of Protection to be appointed to act as your Deputy in order to manage your property and financial affairs. This can be a lengthy and expensive process.
It is therefore recommended that you both consider making LPAs as part of your later life planning. An LPA can also be made to appoint attorneys to make decisions about your health and welfare. You can also appoint other family members who could act if your spouse could not.
You should, however, be aware that in making LPAs you are giving your attorneys substantial powers to make decisions on your behalf and to manage to your affairs which may be open to abuse. It is therefore strongly recommended that you seek legal advice about your options and the suitability of any proposed arrangements.
To speak to Claire Clarke about any aspect of Probate Law please call 01572 725 774 or email firstname.lastname@example.org