As head of the Private Client and head of the Court of Protection team, this is a question I am often asked by clients and colleagues.
The distinction is actually quite simple:
A Power of Attorney is made by a person with mental capacity; In preparation for a time in the future that you might need help making decisions about your finances or health and care decisions. You choose who you trust to do this for you and appoint them under a Power of Attorney.
They are most commonly used to:
- Access bank accounts;
- Sell a property;
- Set up savings accounts or investments;
- Deal with utility companies and insurances;
- Make decisions as to a person’s treatment and care provision and where they live.
The person you appoint is called your Attorney and you are called the Donor.
In contrast, a Court of Protection Order is an order made by a Judge when a person does not have mental capacity to make the appointment themselves through a Power of Attorney but it is certified that they need help. A Judge will give power to a person they deem suitable to make decisions in relation to finances or specific decisions about care and treatment. A person appointed by the court is called a Deputy.
The table below looks at some key differences.
|Court fee||£82 per registration fee per power||£385 per application|
|Time frame||3-4 months registration||5-9 months|
|Supervision||None – Attorneys are not supervised||Deputies are supervised by the Office of the Public Guardian (OPG). They have to submit annual accounts to the OPG and may be visited by a court appointed visitor.|
|Security||None – although the idea of an attorney bond will soon be an option||Deputies must have a security bond in place before their appointment is valid.The level of security is set by the Court. The annual premium is paid for from your finances.|
|Flexibility||You can appoint more than one attorney and appoint replacement attorneys. You can change what instructions, restrictions or conditions you place on the power.
The Power of Attorney can be used with your permission if you still have mental capacity and if you have lost mental capacity.
|The Court will appoint a sole deputy of more than one. It is very usual to have replacement deputies and a new application would need to be made.
The Court decides on which powers to give the deputy and some actions will be restricted without further authorisation from the Court.
|Ability to change||You can revoke or partially revoke your Power of Attorney at any time and make a new one if you have capacity to do so.
Your attorney can disclaim their appointment if they are unable to act for you
|Only the Court can discharge a deputy and appoint a new person.
|Health & Welfare decisions||You can appoint someone to make all of your health and welfare decisions on your behalf if you lose capacity||The Court is reluctant to appoint health and welfare deputies only in extreme cases.
The Court will make specific decisions about health and welfare if there is a dispute.
You may also now wish to read our guide to the differences between an Enduring Power of Attorney and a Lasting Power of Attorney.
Acting for someone who has lost capacity, or perhaps challenging care or care home funding arrangements is complex, which is why you need an expert.
Talk to the experts – Wilson Browne Solicitors. All the help you need.