What happens to my Lasting Power of Attorney after divorce?
Divorce has significant impact in a person’s life and requires a rebalancing of your affairs. From a financial and welfare perspective, updating your will and considering the status of your lasting power of attorney after divorce is crucial.
If you already have a Lasting Power of Attorney (LPA), you should ask yourself whether you should change it. And if you don’t have one, you should consider drawing one up.
LPAs are legal documents that allow you (the ‘donor’) to appoint one or more people (known as ‘attorneys’) to make decisions on your behalf, should you need help or lose capacity to make those decisions yourself.
This gives you more control over what happens to you if, for example, you have an accident or an illness and cannot make your own decisions (i.e. if you ‘lack mental capacity’).
There are two types of LPA:
- Property and Financial Affairs LPA – an LPA that grants authority in relation to financial decisions.
- Health and welfare LPA – an LPA that grants authority in relation to health and care.
What are the effects of divorce on your LPA?
If you divorce, then the appointment of your spouse as your attorney will end on the dissolution of the marriage. The only exception to this is if your LPA specifies that your spouse’s appointment was not to be revoked on divorce. If there is no clause allowing your ex-spouse to remain as your attorney following a divorce, then his or her appointment terminates.
Will divorce terminate my Lasting Power of Attorney?
The answer depends on how many, and how, your attorneys were appointed.
Circumstances in which your LPAs are cancelled
If your spouse was your sole attorney and there are no replacement attorneys, then your LPA will be cancelled. You will need to create new LPAs.
If your spouse was one of multiple attorneys, and the other attorneys were appointed ‘jointly’, then again, your LPA will be cancelled. Again, you need to create new LPAs.
Circumstances in which your LPAs are not cancelled
If your spouse was your sole attorney, but you also named replacement attorneys, then your replacement attorneys would step in to act as the new attorneys. Your LPA continues to function with the replacement attorneys.
If your spouse was one of multiple attorneys, and the attorneys were appointed ‘jointly and severally’, then your ex-spouse’s appointment will be revoked, but the other attorneys will be able to continue acting without them. Your LPA continues to function with the remaining attorneys appointed ‘jointly and severally’.
In both cases, your LPAs will continue functioning. However, it is still highly advisable to review your LPAs before or immediately after your divorce to ensure that the documents still reflect your wishes and instructions.
Can your spouse disclaim their appointment prior to divorce?
Yes, your spouse can disclaim their appointment as an attorney under the LPA prior to divorce.
How can your spouse disclaim their appointment prior to divorce?
To disclaim their appointment, your spouse needs to complete form LPA005. Your spouse needs to give the original signed form to you and copies to any other attorneys and any replacement attorneys. If the LPA is registered with the Office of the Public Guardian (OPG), your spouse also needs to send a copy of the form to the OPG together with any copies of the LPA that they have.
Does the disclaimer revoke your entire Lasting Power of Attorney?
Whether the disclaimer revokes the entire Lasting Power of Attorney will depend on whether you appointed your spouse ‘jointly’ or ‘jointly and severally’ and whether there are any replacement attorneys appointed.
Can I terminate my spouse’s appointment or revoke my LPA before the divorce?
Yes, you can revoke your entire LPA and make a new one or revoke your spouse’s appointment as attorney by signing a Deed of Revocation. To revoke a registered LPA, Notice needs to be given to the Office of the Public Guardian (OPG). Notice will also need to be given to any other attorneys or replacement attorneys.
What happens to an Enduring Power of Attorney after a divorce?
Enduring Powers of Attorney (EPAs) were replaced by Lasting Powers of Attorney (LPAs) in England and Wales in 2007. Enduring Powers of Attorneys created before 2007 are still valid and can be used, but it is no longer possible to create a new EPA.
If you divorce after creating an EPA, it will still be valid unless or until you revoke it. However, if you appointed your former spouse as your attorney, their appointment is cancelled. If you want to continue to have your former spouse act as your attorney, you will need to create a new LPA.
Does a spouse automatically have power of attorney?
If there is no LPA in place, spouses do not automatically have power of attorney for each other in the United Kingdom.
Does my ex-spouse still have power of attorney over me after we divorce?
In most cases, your ex-spouse’s appointment as your attorney will be automatically revoked when you divorce unless your LPA explicitly says otherwise.
Navigating the law relating to LPAs can be tricky. If you need any help or advice on your Lasting Power of Attorney after a divorce or on any matter relating to lasting powers of attorney or the divorce process, please feel free to contact one of our Power of Attorney Solicitors or Divorce Lawyers on 020 8492 2290.