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What is the difference between the court of protection and power of attorney?

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The Court of Protection and Lasting Power of Attorney apply in situations where a person does not have the mental capacity to make their own decisions.

The main difference between the two, depends on whether you have mental capacity to choose someone to manage your affairs or whether you have lost capacity and therefore require the Court to make that decision for you.

If you lose your mental capacity, the Court of Protection can appoint a deputy to act on your behalf. If you still have mental capacity you appoint someone in advance for this purpose by making a Lasting Power of Attorney (LPA).

What is the Court of Protection?

The Court of Protection deals with decisions and actions relating to the Mental Capacity Act.

The Court can make individual, specific decisions about person’s financial and/or welfare issues for people who do not have the mental capacity to make these decisions on their own. Alternatively, the Court can make an order for a responsible person to make ongoing (‘day-to-day’) decisions about financial matters or welfare matters. This is called a Property & Affairs Deputyship Order or a Health and Welfare Deputyship Order.

This responsible person then becomes a “deputy”.

The Court of Protection is based in London, and usually district or senior judges hear its cases. Although in circumstances when a hearing is needed a hearing local to the Applicant or the incapacitated person can hear the case.

How Does the Court Choose a Deputy?

Generally, when appointing a deputy to look after someone’s affairs, the court prefers it to be a family member, providing they capable and willing to act in the persons “best interest”

Paid care workers are not suitable, as this could give rise to a conflict of interest.

The Court of Protection can consider other people for appointment, such as friends or neighbours.

They can also appoint professionals as deputies, such as solicitors, accountants and local authority officers. This is often preferred if there are difficult family circumstances, a conflict of interest or estates of high value.

There are solicitors who specialise in acting as deputies for the Court of Protection. There is a Panel of specialist deputies that the Court will refer cases to where there is no one suitable or willing to act.

The Court is unlikely to appoint someone who is bankrupt or subject to an Involuntary Arrangement.
There are two types of deputy, one for dealing with health and welfare, and one for dealing with property and affairs.

Someone can act as one type, or both types combined.

When Would You Need a Court of Protection Deputy?

If someone has not made a Lasting Power of Attorney and has lost mental capacity, it may be necessary to appoint a deputy.

This can happen when someone’s health worsens, or they are unable to manage their financial affairs.

A common situation where the court appoints a willing deputy in this way is when someone develops dementia.

It’s more common, for the court to appoint a property and affairs deputy, who will carry out duties such as dealing with property and care home charges, or collecting income and benefits on the behalf of the individual.

Only in exceptional circumstances will the Court of Protection appoint a Health & Welfare deputy as the NHS, Local Authority and care providers are able to make health and welfare decisions on behalf of an incapacitated person.

If there is a disagreement between the Health Care providers and the family on decisions such as major medical treatment or where a person should live, an application will be made at the Court of Protection for a Judge to make the decision in the best interest of the person.

Who Can Apply to be a Deputy?

If a person wishes to become a Court of Protection deputy, to act on an individual’s behalf, they must first meet the court’s requirements.

They must be aged 18 or over. As we have mentioned earlier, deputies are often close relatives of the individual they wish to act on behalf of. This gives them the knowledge necessary to make decisions that the individual would normally support.

A medical certificate will need to be prepared to certify that the person does not have capacity to manage their own affairs or make a particular decision.

If they are applying to become a property and affairs deputy, they will also need to show the court that they are suitable to make financial decisions and declare to the Court what assets the person has.

There is a downloadable application form to become a deputy, available on the UK Government website. You can instruct a solicitor to make the application on your behalf and ask for their costs to be paid from the persons assets.

There is an application fee of £365 plus an annual supervision fee. The Office of the Public Guardian supervises deputies.

All deputies, whether they are a close relative or a professional, should carry out their duties responsibly, with due care and skill, in the best interests of the person, while not taking advantage of their position.

How Do Solicitors work with the Court of Protection?

Solicitors can submit applications to the Court of Protection for people to be appointed as deputies (such as relatives or close friends of the individual concerned). They are also often involved when a more specific application is needed such as a Statutory Will (a will made on behalf of someone else); an application to make gifts or to assist where there are disputes over the appointment of deputies, or over financial matters.

They can also apply for themselves to be appointed on behalf of a person where they require help in managing financial affairs.  Where a solicitor is appointed as a professional deputy, they can carry out various tasks, including:

• Preparing annual accounts for the Office of the Public Guardian

• Making sure someone is receiving the correct benefits

• Selling their property if they need to move into a care home

• Employing carers and paying care home fees

What is Lasting Power of Attorney?

Lasting Power of Attorney (LPA) is a way that individuals can plan for the future.

The LPA is a legal document, in which the individual, known as the donor, appoints someone to act on their behalf. This person is the attorney.

An attorney is similar to a deputy in this respect, because it is also a method for making decisions on behalf of someone who cannot make them on their own.

But there is a major difference between an attorney and a deputy.

With LPAs, the individual appoints someone before they lose the capacity to make their own decisions. An LPA is about the donor controlling who should act on their behalf, while they are still able to do this.

How Does LPA Work?

Again, like the different types of deputy that the Court of Protection can appoint, there are two kinds of LPA:

• Health and welfare, and
• Property and financial affairs.

A donor can choose to have either kind of LPA, or both of them.

In a health and welfare LPA, the donor grants someone the power to act on their behalf to make decisions about the donor’s daily healthcare, for example, or whether they need to move into a care home.

In property and financial affairs LPA, the donor appoints an attorney to make decisions about selling their home, managing their bank account, or other financial matters.

The difference between this and the health and welfare LPA is that the donor can, if they wish, allow the attorney to use the power of the LPA as soon as they register it.

This provides a greater degree of flexibility than appointing a Court of Protection deputy, since the attorney may act on the donor’s behalf before they suffer any kind of mental incapacity.

If the donor signs an LPA in advance of any mental incapacity, then the person they appoint has the legal responsibility to make decisions in the donor’s best interests.

Generally, there will be no ongoing court involvement.

However, for all matters outside the scope of the LPA and if any difficulties arise then the Court of Protection can step in and make decisions and if necessary revoke the LPA and appoint a deputy to manage that person’s affairs.

What Does the Mental Capacity Act Do?

The Mental Capacity Act (MCA) is designed to protect people who lack the mental capacity to make decisions about their own treatment and care.

It includes details about decisions that can impact different areas of their lives, including care facilities and medical treatment, as well as things such as what they wear and how they shop for food.

It is a complex area of law, as someone may still have the capacity to make some decisions, but lack the capacity to make others.

A key aspect of the MCA is empowering people to express preferences for their care and treatment, and enabling them to appoint a trusted person to make decisions on their behalf, should they lose this capacity in the future.

The law also says they should be provided with the services of an independent advocate to support them to make certain decisions.

Court of Protection or LPA?

This is not a choice: where an individual has not made or signed an LPA AND has lost capacity then it is up to the Court of Protection to appoint a deputy, or deputies, to make decisions on their behalf.
The Court of Protection has no jurisdiction (power) if the person still has capacity to make decisions themselves.
Someone who still has capacity can choose to plan for their future and make an LPA. If, however, someone is considering an LPA, it is important that they take sound legal advice beforehand.

The benefit for the donor is that they then have complete control over appointing an attorney, which they would not have with a deputy.

A Lasting Power of Attorney is quicker, less costly and less onerous than appointing a deputy via the Court of Protection.

But there are more legal safeguards with deputyships, as the Court is involved in choosing and checking that the person acting as deputy is making the right decisions. The office of the Public Guardian then reviews these decisions every year.

The Office of the Public Guardian supervises deputies, and there may be visits from a Court of Protection Visitor to check that they are carrying out their duties properly. Therefore, there are ongoing as well as initial costs for a Court of Protection Deputy.

In contrast, once someone registers a power of attorney, normally there are no ongoing costs.

How to Make the Right Decision?

There are various reasons to choose to make a Lasting Power of Attorney.

It may be that you want to have full control over who you appoint to act in your interests and to have their support earlier rather than later.

If you feel that the robust supervision that the Court of Protection provides is something that gives you greater peace of mind, then wait to see if you loose capacity and need the courts assistance

The important and sensible thing is to discuss any concerns you have with a legal professional before making any decision.

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Vicki Pearce

Posted:

Vicki Pearce

Partner

Vicki is a Partner and head of our Private Client Team and our Care Funding and Court of Protection Team . She is based in Northampton. As head of both teams she is able to bring her expertise and obvious overlaps into both areas of…