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Divorce and the effect on your Power of Attorney

According to the Office of National Statistics there were 91,299 divorces in 2018 (the latest information available). When going through a divorce it is important that you review your Will and Powers of Attorney.

Recently I was fortunate to work alongside Alison Craggs, Senior Solicitor at The Burnside Partnership – in this article, which I have written in conjunction with Alison, I focus on Lasting Powers of Attorney (LPAs) and whether:

  • Divorce ends your spouse’s appointment as your attorney.
  • Divorce terminates the rest of your LPA.
  • Before the divorce, your spouse can disclaim their appointment as your attorney.
  • Before the divorce, you can revoke your LPA or terminate your spouse’s appointment.

Lasting Powers of Attorney

Since 1 October 2007 it has been possible to create two types of LPA:

  • A Property and Financial Affairs LPA – this allows you as the donor to give someone (your attorney) authority to manage your finances if you become physically or mentally incapable of managing them yourself. Under this LPA your attorney could pay your bills, operate your bank accounts, and sell or rent your home.
  • A Health and Welfare LPA – this gives your attorney the ability to make decisions about where you live, how you are looked after and your medical treatment in the event that you become unable to make those decisions yourself.
  1. Will divorce end my spouse’s appointment as my attorney?

To consider this, let us take the example of Henry and Wilma who are married with two adult children.  Henry has made an LPA appointing Wilma to be his attorney.

If Henry and Wilma divorce, then the appointment of Wilma as Henry’s attorney will end on the dissolution of their marriage.  The only exception to this is if Henry’s LPA specified that her appointment was not to be revoked on divorce.  For example, if his LPA specifically included a clause stating that “The dissolution of my marriage to Wilma shall not terminate her appointment as attorney of this Lasting Power of Attorney”.

  1. Will divorce terminate the rest of my LPA?

The answer depends on how your attorneys were appointed.

Appointment of Attorneys

When making an LPA you can appoint just one attorney, or you can appoint more than one attorney.  You can also decide whether you appoint replacement attorneys to step in in case your original attorney dies or is unable to act.

If you appoint more than one attorney, you can decide how you want them to work together.  You can appoint them to act “jointly and severally”, “jointly” or “jointly for some decisions and jointly and severally for other decisions”.

If you appoint your attorneys to act “jointly and severally” then they can make decisions on their own or together.  If you appoint them “jointly” then they must always act together and agree on every decision.

Sole attorney, no replacement attorneys

Continuing with the above example, if Henry appointed Wilma as his only attorney, with no replacements attorneys then the LPA will end as there is no one else appointed to step in.

Sole attorney, but replacements attorneys appointed

If Henry appointed Wilma as his sole attorney and appointed his children as replacement attorneys then the LPA would continue to be effective, but with Wilma’s appointment having terminated.  Therefore, the children would be able to step in and make decisions for Henry if he became incapable.

More than one attorney appointed “jointly”

If Henry appointed Wilma and his children to act “jointly” then because they must always act together the LPA would be terminated on the couples’ divorce.

More than one attorney appointed “jointly and severally”

Had Henry appointed Wilma and his children to act “jointly and severally”, meaning that they could make decision on their own or together then the LPA would not be terminated on divorce.  Wilma’s appointment as an attorney would end, but the children would continue to be his attorneys.

In summary the effect of divorce is that it will terminate your LPA if your spouse was appointed to act alone or jointly and there are no replacement attorneys appointed.

  1. Can the attorney disclaim their appointment before the divorce?

Yes.  Continuing the above example, Wilma could disclaim her appointment as an attorney under the LPA.  She might want to do this if she wanted her appointment to end immediately rather than having to wait for the divorce to be finalised.  She would need to complete and sign form LPA005 (Disclaimer by a proposed or acting attorney under a lasting power of attorney) [https://www.gov.uk/government/publications/disclaim-a-lasting-power-of-attorney].   The original signed form would need to be sent to Henry and a copy to any other attorneys and replacement attorneys.  If the LPA is registered with the Office of the Public Guardian (OPG) then she would also need to send a copy of the form to them together with any copies of the LPA that she has.

Whether the disclaimer revokes the entire LPA or not will depend on whether Henry appointed Wilma “jointly” or “jointly and severally” and whether there are any replacement attorneys appointed.

  1. Can I revoke my LPA or terminate my spouse’s appointment prior to divorce?

Yes.  So again, using the above example, Henry could decide to revoke his entire LPA and make a new one or revoke Wilma’s appointment as attorney by signing a Deed of Revocation.   Notice of the Deed would need to be given to the OPG so that they can either cancel the registered LPA or amend their records to remove Wilma.  Notice would also need to be given to any other attorneys or replacement attorneys.

  1. I have an Enduring Power of Attorney is the position the same?

Prior to 1 October 2007 you could put in a place an Ending Power of Attorney (EPA) to appoint someone to manage your finances if you became incapable of managing them yourself.  Although no new EPAs can be made, existing EPAs continue to be valid.

The Enduring Powers of Attorney Act 1985 makes no provision for the situation where the donor and attorney were married when the EPA was made, but subsequently divorce.  As the situation is not covered, if you have made an EPA and are now getting divorced you may want to revoke the EPA, so the position is clear and make a new LPA.

If you would like to discuss any of the issues in this article please do get in touch.

For additional information regarding Wills and Lasting Powers of Attorney, you might also find these resources helpful:

Getting divorced make sure you review your Will.

What is a Property and Affairs Lasting Power of Attorney, and how do you use it?

How do I register an Enduring Power of Attorney in England and Wales?

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