Reasons to choose Wilson Browne
Lasting power of attorney (LPA) and a deputyship from the Court of Protection both involve a nominated person or people acting on someone’s behalf.
They apply in circumstances where an individual needs help or no longer has the mental capacity to make their own decisions.
An LPA and a deputyship do differ in several crucial ways, however.
The chief difference is that with an LPA, the individual nominates a person to act on their behalf, whereas the Court of Protection appoints a deputy for this purpose.
But there are other ways in which an LPA and a deputyship differ too.
Mental Capacity: Before or After
Although both an LPA and a deputyship are there to act for people who lack mental capacity, this also marks a difference between them.
To make an LPA you must have the mental capacity to do so. In other words, you nominate someone to act on your behalf while you still have the mental capacity to make this decision. You decide on your LPA and make the necessary arrangements.
But with a deputyship, the proposed deputy applies to the Court of Protection themselves because the person on whose behalf they will be acting already lacks mental capacity.
It is a difference of timing. You appoint an attorney before you lose mental capacity. The court appoints a deputy for you, after you have lost mental capacity.
Length of the Process
You can arrange, write and register an LPA in around eight to twelve weeks. Timing can be important as you must do it before you lose mental capacity.
However, once you have registered your LPAs, your attorneys can act for you immediately, if you want them to. If, for example, they need to access funds quickly in an emergency, they will be able to do so.
A deputyship is a much longer process. If you lose mental capacity, the court application to appoint a deputy can take four to six months. During this waiting time, no one can make a decision on your behalf, or access your funds to pay bills or other expenses, such as nursing care.
Nominating an attorney under an LPA is cheaper than having the court appoint a deputy.
Currently, it costs £82 to register an individual LPA, whereas just the court fee for a single deputyship application is £365. Deputyships also incur annual supervision fees of either £35 or £320 a year, depending on the type of deputyship.
You will also need to consider legal fees for both an LPA and a deputyship on top of these costs.
Supervision and Safeguards
For a court-appointed deputy, the level of supervision they receive is far greater than for someone with LPA.
The deputy must submit an annual report to the Office of the Public Guardian (OPG), accounting for all the expenditure they have made when carrying out this role. The court reviews the deputy’s decisions every year.
The LPA does not need to report to the OPG. The assumption is, because the person on whose behalf they are acting nominated them, they will act in this person’s best interests.
There may be instances where the court does investigate an attorney, but there is no formal, ongoing supervision.
There are also more legal safeguards inherent in a deputyship, since the Court of Protection is involved in the appointment in the first place.
Making the Right Choice
The main benefit of an LPA is that you get to nominate a person of your choice. This should be someone you can trust to act competently on your behalf and manage your affairs.
You can nominate more than one attorney, and they can focus health and welfare, property and financial affairs, or both.
This depends on the type of LPA you set up. Then there is the option to have the input and support of a nominated LPA while you still have mental capacity. Once you register them, they can act for you at any time, should you decide.
This provides a greater degree of flexibility than having a court-appointed deputy and usually there is no ongoing court involvement.
If, an LPA is declared invalid for some reason, then the Court of Protection will intervene and appoint a deputy.
Where someone has not made an LPA, then the Court of Protection offers a way of having someone manage their affairs once they lose mental capacity.
And this is a structured and supervised arrangement. For some people, this more robust framework may be preferable.
How a Solicitor Can Help with LPAs and Deputyships
An experienced solicitor can advise you on the most appropriate type of LPA for your needs, and put it together for you to ensure it meets legal requirements.
Alternatively, they can submit applications to the Court of Protection on behalf of someone wishing to become a deputy, and support them with the necessary information they need.
Solicitors can also act as professional deputies themselves, should this be needed.
Find out more about using an LPA with our downloadable guide