Common misconceptions around a Power of Attorney

It’s a common misconception that if you’re married or in a civil partnership, your spouse or partner can make decisions on your behalf if you lose the mental capacity to do so. Without a valid Lasting Power of Attorney or Enduring Power of Attorney, they would need to apply to the Court of Protection to make health decisions on your behalf and deal with your financial assets such as bank accounts or pensions.

This becomes even more important when it comes to property and assets which you may hold jointly or in your sole name. This could be very limiting if one of you is the main income earner in the household, as the other may find themselves without access to funds to pay bills or to fund care you may require.

If assets are owned in your joint names, then the situation can become just as complicated, as if the spouse or partner who retains capacity needs to access those assets, they may require the signature of the spouse or partner who has become incapacitated.

Applying to the Court of Protection to gain access to funds is a costly and lengthy process, often taking over a year, during which time your spouse or partner could find themselves in a difficult financial position.

When it comes to health decisions, we often hear the phrase ‘my spouse is my next of kin, so I don’t need to appoint them as my attorney’ which is also a common misunderstanding. A next of kin has no legal rights and cannot give authority or sign to consent to life sustaining treatment, health decisions or even care plans. Medical professionals will consult next of kin, but they do not have to follow their decisions. Only as an attorney would your spouse or partner have the absolute legal authority to make these decisions on your behalf.

If you would like to know more about putting in place Lasting Powers of Attorney or if you have an existing Enduring Power of Attorney and want to know more please get in touch with our team today.