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08 Oct 2022

Wills & Probate

Cohabiting? Why a Lasting Power of Attorney is important.

If you are living with your partner, it is important to have a Lasting Power of Attorney in place, should the worst happen.

The number of couples living together, without getting married or entering into a civil partnership, is on the rise. Recent studies show that cohabiting couples now represent 1 in 5 of all couples that live together, but while it may be increasingly common, there are practically no legal rights  when it comes to care or financial matters.

While spouse/civil partner will always have the authority to act as Next of Kin, cohabiting partners may not be afforded that same status. This is particularly crucial for health and welfare decisions.

It is wise, therefore, to set up a Power of Attorney as a couple – ensuring that those rights will be both afforded and protected.

What is power of attorney?

A power of attorney is a legal document letting you appoint others (in this example, your cohabiting partner) to take care of your affairs, should you become mentally or physically incapacitated. It allows them to make decisions and/or act on your behalf.

As a couple, you will likely seek a Lasting Power of Attorney (LPA), which gives your partner the control of your affairs until it is either revoked, or you pass away. It is important that an LPA is put in place before you are legally declared incapacitated but don’t worry, this doesn’t give your partner these rights unless you say the LPA can be used. Think of it more as a safety net, in case the worst happens.

How does an LPA work?

You can choose to allow your partner, if it becomes necessary, to have control over your health and welfare, your financial affairs (including any property you may jointly own), or both:

  • Health and Welfare – this will give your partner the right to make care decisions on your behalf, if you are unable to do so, for whatever reason. This includes discussing and agreeing courses of treatments with healthcare professionals, determining the type of care you receive, be that at your own home, or if you need to move to a care setting. Your partner can only take on this power after you have been declared mentally unfit.
  • Property and Financial – this allows your partner access to any bank and/or building society accounts, along with pensions, property and investments. It also allows them to deal with things like paying your bills.

How do you put an LPA in place?

There are four basic steps in setting up an LPA.

  1. Choose your attorney. While this article is specifically bringing attention to cohabitees, so assuming this will be your partner, you may also want to consider family members or friends, anyone that you would strongly trust, should the worse happen. You can also have more than one attorney and you can make decisions such as whether they have power over different aspects, or whether they have to jointly agree on decisions. It is entirely up to you, just as long as whoever you appoint is over the age of 18 and mentally capable of undertaking the role.
  2. Once you have chosen your attorney(s), you have two forms to complete – an LP1H for Health and Welfare and an LP1F for your financial affairs. Due to the complexities it is a good idea at this stage to seek advice from a solicitor.
  3. Whilst optional, it is highly recommended that you include ‘people to notify’ when completing your LPA forms, you can do this by sending out an LP3 form to all those named. Anyone not named as an attorney can be notified – the idea is that this offers an extra layer of protection, since ‘named people’ may be more likely to object or call out tricky subjects that those with a vested interest (your attorneys) may not and they can raise any issues with the Office of the Public Guardian (OPG).
  1. Once your forms are completed and any ‘named’ people have been notified, your attorney then needs to register with the OPG, either online or by post. You will receive a notification once this step has been completed.

Without an LPA, if you lose capacity, your partner may have to apply for a Deputyship through the Court of Protection. Not only is this a lengthy and expensive process, it is possible that any property you own cannot be sold, or joint bank accounts are frozen until it is approved.

Get in touch

If you would like to discuss any of the matters raised in this article and put steps in place to protect yours and your partner’s rights, get in touch. Our friendly, specialist Wills & Probate team at Harding Evans have years of experience and would be happy to talk you through the whole process.

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