A Lasting Power of Attorney (LPA) can be put into place by a donor (the person appointing the LPA) at any stage of their life and it allows the LPA to make decisions about both the donors property and financial affairs should they lose the mental capacity to make those decisions themselves.
There are many decisions which an LPA can make in relation to a donor’s financial affairs and if you are appointed as one this is something which should be researched further.
LPA in the Divorce Process
In terms of a divorce, depending on the circumstances within a case it can become quite a lengthy process especially if matters are to proceed to court. During that time, it may be unfortunate that one party loses their capacity to make decisions for themselves. At that stage, you may be considering what happens and raise questions regarding the powers the Lasting Power of Attorney has within that process.
The role of a Litigation Friend
If a person loses the capacity to enable them to conduct proceedings then they become a protected party. At that point, they are not able to continue with the proceedings and a litigation friend must be appointed to conduct proceedings on their behalf. They will require the courts permission for an application to be made to appoint a Litigation Friend. Any steps which are taken before the protected party has a Litigation Friend will have no effect unless the court orders otherwise.
If an agreement has been reached in respect of the finances upon the parties’ divorce and a Financial Consent Order has been drafted, setting out those terms but has not yet been signed by the parties then unfortunately, if one party does lose capacity a Lasting Power of Attorney is unable to sign the document on their behalf. The Lasting Power of Attorney would need to be appointed as a Litigation Friend to enable them to sign the document.
How does an LPA Become a Litigation Friend and Do They Need a Court Order?
If the LPA wishes to become a Litigation Friend they can file an official copy of the order, declaration or other document at court which confers that they have the donor’s authority to act and this will allow them to act as a Litigation Friend without an ‘official’ court order. This needs to be filed at the first point they proceed to make a step in the proceedings.
It would however be advised that an application is to be made to the court with the above evidence to request a direction to allow the LPA to be appointed as a litigation friend, which will consequently allow them permission to sign the Financial Consent Order. This will ensure they do not encounter any further problems.
What if the LPA does not want to become a Litigation Friend?
A person may have agreed to become the donors LPA but does not wish to be involved with the divorce proceedings. It is completely the LPA’s decision, and they cannot be forced to become a Litigation Friend.
If that’s the case, then if the donor/party has an alternative person who wishes to become a Litigation Friend they can complete an application and submit this to the court requesting to be appointed. The person applying to become appointed as a Litigation Friend must be someone who does not have a conflict with the divorce and will act in that person’s best interests.
How can Tozers help?
To find out more about divorce or separation visit our dedicated family law page, or book a free initial conversation with one of our expert family lawyers. Whatever stage you’re at, we’ll be there to support you through it all.