What is a Maintenance Clause in a Lasting Power of Attorney (LPA)?

With blended families where there are children from previous relationships there may have been tension at the outset of the relationship, but this can become more difficult when children have certain expectations of preserving inheritance which contrast with maintenance being paid to the new spouse. 

Private Wealth expert Nima Stepney and Family Law experts Caroline Rushton and George Newton explain how carefully drafting an LPA to include a maintenance clause can help circumvent any uncertainty by granting attorneys the authority to continue financial support to someone who you were already supporting.

What is a maintenance clause?

A maintenance clause is only applicable in a Property and Financial Affairs LPA and it provides that your appointed attorneys are to continue making specified maintenance payments from your finances. 

The payments can be for a variety of reasons such as supporting a husband or wife, paying household bills for yourself or jointly, mortgage payments, school fees or financial support for dependents for example. 

It may be the case that if your attorney does not have the appropriate authority, they are unable to continue this payment even though that was your intention. 

Why would my solicitor advise me to have a maintenance clause?

In an ageing population solicitors are seeing a greater level of second, third or fourth… marriages, commonly referred to as silver marriages. In conjunction with these silver marriages is an increase in the number of blended families and in contrast with younger couples, older couples tend to bring to the marriage their own individual savings, pensions, property and children.

As the spouses are older, they are more likely to be susceptible to losing capacity and a solicitor may recommend a maintenance clause to help in situations where for example the new partner may require ongoing financial support, but the children are concerned that their biological parent is spending all their money, which one day they hope is theirs. This can lead to expensive and emotionally taxing disputes between attorneys about what the wishes of the incapacitated person may have been.

What if I don’t have a maintenance clause?

If you do not have a maintenance clause then it may mean that your attorneys may not be able to continue providing financial support to your spouse for example, or paying school fees for grandchildren.

If your LPA lacks authorisation for ongoing maintenance payments, your attorneys might be unable to continue them - especially if those funds are required to pay for your own care. In those cases, they may have to seek authorisation from the Court of Protection first. This additional step can cause frustrating delays when your family needs financial support, create unnecessary legal expenses and potentially fuel conflict among relatives.

A maintenance clause can provide the necessary authorisation as well as confidence for your attorneys when they are making decisions regarding ongoing financial support, while balancing your best interests financially.

If you still have capacity, you may be able to replace your LPA documents to include a maintenance clause.

Do I need a Letter of Wishes as well?

It can depend on your situation, but a Letter of Wishes can be a useful aid to provide context to attorneys and help avoid disputes about what the real intentions were. It can also provide options for a change of a circumstances allowing for greater flexibility that just a maintenance clause. However, they are not legally binding in most contexts and should therefore not be a replacement for a maintenance clause.

Having both together provides for certainty and paired with wider estate planning such as professional drafted Wills, nuptial agreements and regular reviews of these documents will show a clear pattern of your intentions come what may.

Summary

A maintenance clause in a Property and Financial Affairs LPA can provide clarity and reassurance by ensuring that your attorneys have the authority to continue financial support for those you already support if you lose capacity. This can be particularly important for couples in silver marriages and blended families, where differing expectations around finances and inheritance can create uncertainty or conflict. Alongside a Letter of Wishes and wider estate planning, a maintenance clause can help provide a clear record of your intentions and support your attorneys in making decisions in line with your wishes.

If you would like to discuss drafting an LPA or replacing an existing one to include a maintenance clause, please contact Nima Stepney, in our Private Client team on 020 8461 6184 to arrange an appointment.