Silver-splitters – considerations if separating later in life
With divorce rates in the over 50s, the so called “silver-splitters”, increasing faster than any other age group, and with this week being Dementia Awareness Week, we look at the issues that couples divorcing later in life may need to consider.
Most people know to re-look at their Will if they divorce, to ensure it reflects what they would want to happen to their estate, should the worst happen. But with people in their 50s, 60s and 70s becoming more likely to divorce, and with conditions like dementia to bear in mind, we are urging these individuals to also review any powers of attorney they may have put in place.
We advise clients to make a power of attorney so that they choose who they want to deal with their finances if they become physically or mentally incapable of managing them themselves. It is very common for couples to appoint their spouse to be an attorney, but upon divorce, some people may not treat this as a priority to review, compared to their Will.
You might have made a Lasting Power of Attorney (LPA) or prior to 1 October 2007 an Enduring Power of Attorney (EPA).
If you have made a LPA, then the effect of divorce will mean that the appointment of your spouse as attorney will be revoked.
If your spouse was your sole attorney and there were no replacement attorneys then the LPA will cease to be effective – which could cause complications for your closest friends and family should they need for this to be in place to deal with your affairs.
If you appointed your spouse jointly with another attorney(s), rather than jointly and severally then the effect of divorce will mean that the LPA is revoked. This is why we usually recommend a joint and several appointment.
If you made a LPA and say your spouse is appointed with others jointly and severally or there are replacement attorneys appointed you could leave things as they are and rely on the above provisions. You may, however, wish to change your attorneys, in which case you would need to revoke your current LPA and make a new LPA.
The legislation which applies to LPAs does not apply to EPAs, but the Law Commission recommended that divorce should revoke the appointment of a spouse under an EPA, unless the terms of the EPA provide otherwise. To create certainty, if you no longer wanted the EPA to apply then you can revoke it.
An EPA will be effective when signed. Your attorneys can act straightaway under an EPA if you become physically incapable, but if you become mentally incapable then they will need to register the document with the Office of the Public Guardian (OPG). The position is different for LPAs, as they need to be registered with the OPG before the attorney can act under them.
If you made an EPA in favour of your spouse and others and become mentally incapable then one of the attorneys would need to register the document to be able to act under it. The registration process involves notifying various family members. If at that time your matrimonial relationship has broken down then one of the notifiable persons could object to the registration of the EPA on the basis that your spouse is unsuitable to be your attorney.
Divorce is never easy, but reviewing your power of attorney is, so if the above circumstances apply to you, please do not delay in carrying out a review.