Lasting Power of Attorney v Deputyship
At first sight, Lasting Powers of Attorney and a Deputyship achieve a similar purpose in relation to your property and financial affairs. They both appoint an individual to manage and make decisions in respect of your property and finances.
So, what is the difference between the two? Mental capacity.
If an individual has mental capacity, they can progress with putting a Lasting Power of Attorney in place and appoint what is known as an attorney to act on their behalf.
If an individual lacks mental capacity, then an application can be made to the Court of Protection for a Deputyship Order, to appoint what is known as a deputy to act on the person who lacks capacity’s behalf.
Although the roles of an attorney and deputy are similar by purpose, there are some other administrative differences.
It is important to note that in respect of a Lasting Power of Attorney that relates to your property and finances, this can be used prior to mental capacity being lost. Therefore, the appointed attorney can make decisions so long as they have your consent and agreement for the decision to be made.
A Lasting Power of Attorney that covers your health and welfare is different, in that it will only come into effect when you are unable to make the decision for yourself. It therefore cannot be used even with your consent and agreement like the financial document.
Generally, a Deputyship Order will only cover your property and finances but not your health and welfare. The Court of Protection is reluctant to grant a blanket Deputyship Order that provides a general authority to deal with all your health and welfare decisions, like a health and welfare Lasting Power of Attorney would.
Understandably, the Court of Protection is strict with health and welfare matters, due to not knowing what your wishes would have been had you had the capacity to provide these.
If you can put Lasting Powers of Attorney in place, then we would recommend doing so as this means that you have control over who you appoint as your attorneys. You can appoint more than one attorney and they can act together or separately when making decisions on your behalf. This means you can appoint someone you trust, such as a family member, to manage your affairs.
Within the Lasting Power of Attorney document, you are also able to note down any specific instructions or preferences that you may have about how your matters are managed. This could be in relation to the management of your finances or any health decisions that could need to be made in the future.
If, unfortunately, an application for a Deputyship Order is required, then you will not have the same control of appointing people as your deputies, as you would an attorney. It could be that the Court of Protection will appoint a deputy whom they feel is suitable to manage your affairs, particularly if there are no family members willing or able to act on your behalf.
The role of a deputy can be more demanding, in comparison to an attorney, as the level of ongoing supervision is quite different. A deputy has a duty to submit an annual report to the Office of the Public Guardian – this document accounts for all income and expenditure from your accounts that the deputy has been managing in that year period.
Whereas an attorney appointed under a Lasting Power of Attorney is not required to report to the Office of the Public Guardian. Although they are not supervised in the same way that deputies are, attorneys are still expected to account for how money is managed at any given time. Therefore, keeping receipts and records is recommended.
There is a time delay with both applications and the current timeframes are around 20 weeks for a Lasting Power of Attorney to be registered (these are registered by the Office of the Public Guardian). Subject to using the online application process, it is around 16 weeks for a Deputyship Order to be granted by the Court of Protection.
If for any reason, a deputyship application cannot be applied for online and the application needs to be made by post, then this can take anywhere between six months and one year for the Order to be granted.
For example, if a previous deputy involved with the matter has applied by post this will mean that any future applications made to the court will need to be made by post.
It is more expensive to apply to the Court of Protection for a Deputyship Order, due to the amount of work involved with the court-prescribed forms, in comparison to the work associated with Lasting Powers of Attorney.
In addition to legal fees, there are other disbursements that are to be paid directly to the Office of the Public Guardian for Lasting Powers of Attorney and the Court of Protection for a Deputyship Order. There are also ongoing annual supervision fees due to the Office of the Public Guardian in relation to a deputyship.
Whilst we would advise putting a Lasting Power of Attorney in place as soon as possible, we do have a specialist Court of Protection team here at Wilkin Chapman, who can advise you and assist with a deputyship application should it be required.
Contact Keighan to discuss this further.
