5 May 2021

Marital status and later life decisions

By Emma Langley, Solicitor, Hayes + Storr.

The coronavirus pandemic has seen many marriage and civil partnership ceremonies postponed. A survey by the wedding planning website Hitched found that 71 per cent of couples had postponed their weddings rather than proceed with just a handful of guests.

Despite the range of options available nowadays, many couples prefer not to formalise their relationships. Therefore, if you are unmarried, it is important to plan for circumstances which may occur later in life.

Couples who are cohabiting (or those in committed relationships but not living together) may find themselves in a situation where medical and financial decisions are made on their partner’s behalf without their involvement.

A lasting power of attorney (LPA) sets out who you want to make financial or healthcare decisions for you, should you lose mental capacity. Loss of mental capacity can be due to illness, accident, or a serious injury. Sadly, it can impact families at all stages in life and is not just an issue that effects the elderly.

Later life, financial management and mental capacity

Regardless of marital status, no one can access your sole financial accounts unless you have granted authority to them under a financial lasting power of attorney. Despite making a power of attorney being advisable, many people do not put one in place and relatives find themselves caring for a loved one who has lost mental capacity without any authority to deal with that person’s finances.

When this happens, an application to the Court of Protection to be appointed as the person’s deputy could be necessary. If you are paying for someone’s additional care, bills, groceries, or maintaining the upkeep of their property, in the absence of a power of attorney, an application to the Court of Protection is often the only way to obtain authority to access their funds. It is expensive and time consuming, a lasting power of attorney being quicker and cheaper.

Before making a deputy appointment, the court will require sufficient evidence that you are the most appropriate person. For cohabiting couples, this can be trickier to establish than for those who are in a legally recognised union. Therefore, it is even more important for someone who is cohabiting to take steps to protect themselves in the event of lost capacity by making a lasting power of attorney while they are able to do so.

Next of kin and health decisions

Married couples and civil partners are afforded recognition as next of kin for medical purposes. Even so, this does not give absolute authority and a separate health and welfare lasting power of attorney enables you to make your express wishes clear. You may also want other family members involved in these decisions.

Cohabiting couples or those in committed relationships but not living together, are not automatically considered next of kin and can find themselves in a situation where medical decisions are made on their partner’s behalf without their consent. It is even more important therefore to have a health and welfare lasting power of attorney in place.

For further information, call 01328 863231 or email law@hayes-storr.com.

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.