Do we need POA?

Dinky_

If my husband and I wish to appoint each other to make decisions about heath and finance if the other looses mental capacity, do we need to make a POA or as husband and wife would we not already have this authority to make these decisions as next of kin? I'm thinking of applying for POA but wanted to check that it's not an unnecessary expense before hand. Many thanks.

FlorayG

It depends if your affairs are joint or separate. If everything is joint then no; if you each have your own finances then yes you need POA

marcia_

Dinky_ said:

If my husband and I wish to appoint each other to make decisions about heath and finance if the other looses mental capacity, do we need to make a POA or as husband and wife would we not already have this authority to make these decisions as next of kin?

 You need POA being married does not give you those rights. Next of kin means very little as i have recently found out with my father seriously ill in hospital. 

Dinky_

Thanks FlorayG. Our home and main bank account is joint but we do have savings in sole names.

FlorayG

Dinky_ said:

Thanks FlorayG. Our home and main bank account is joint but we do have savings in sole names.

If your bank account is joint then you won't have any problems paying bills, but if you need to access the other's savings or make decisions about their health you won't be allowed without POA

p00hsticks

FlorayG said:

It depends if your affairs are joint or separate. If everything is joint then no; 

I'm not sure that is always the case.

I've no personal experience of it happening but I think it's been mentioned on these boards that if a bank become aware that one person on a joint account is alive but no longer has capacity, then the bank may freeze the account to protect the assets of the person who has lost capacity.

In this case they'd need a POA to be able to access the funds. 

Keep_pedalling

For finances you absolutely should put LPAs in place. For health and welfare maybe not so urgent.

Even if all your savings are in joint accounts they can still be frozen if one account holder loses capacity. Dealing with property sales or purchase would require you to apply to the courts for deputyship if you don’t have LPAs in place.

If you have adult children you should consider acting them to the LPAs as well.

Mands

FlorayG said:

Dinky_ said:

Thanks FlorayG. Our home and main bank account is joint but we do have savings in sole names.

If your bank account is joint then you won't have any problems paying bills, but if you need to access the other's savings or make decisions about their health you won't be allowed without POA

If the bank become aware one person has lost capacity then they are legally permitted to freeze the entire account until legal authority is produced. Without a PoA that would mean going to the Court of Protection which would take around a year. Until that was done the partner with capacity would have no access to the funds in the joint account. 

Of course, one could gamble that the bank wouldn't find out but that's one hell of a risk.

elsien

Next of kin has no meaning in law and does not give you authority to make any health or welfare decisions on the person’s behalf.

Under the mental capacity act you and any other close family members would be consulted and your views would be a large part of the final decisionbut the relevant health or social services professional would be the ultimate decision.

You cannot make a power-of-attorney once someone has lost capacity. For finances you would have to apply to the court of protection for a deputyship, which was taking between 12 and 18 months. I don’t know what the current waiting time is. The court tends not to appoint deputies for health and welfare because they consider that the best interests process is usually adequate. 

So yes if you want to be making decisions for each other, you absolutely need power-of-attorney. 

And just to add, in case you weren’t aware, you don’t need to go to a solicitor to make a power-of-attorney. Unless your affairs are complex, it’s quite straightforwards to do online much more cheaply.