Jenny Greenland is an expert in Lasting Powers of Attorney, the Court of Protection and Deputyship matters. To speak to Jenny, please email her or call her on 01225 755656.
Generally, Lasting Powers of Attorney (LPAs) and Deputyship Orders serve the same purpose – to appoint another person(s) to make decisions for you and manage your affairs. But the major difference between them is timing:
- If you have mental capacity, you can make an LPA and appoint at least one attorney.
- If you have lost mental capacity, an application will have to be made to the Court of Protection for the appointment of at least one deputy.
Another difference is that, in respect of your property and financial affairs, should you wish, your attorney can act as soon as the LPA has been registered with the Office of the Public Guardian (OPG), ie it does not have to be dependent upon you losing mental capacity.
Types of LPA and Deputyship
There are two types of LPA and Deputyship. One covers health and welfare and the other property and financial affairs.
Health and Welfare
It is uncommon for the Court of Protection to appoint a deputy to make health and welfare decisions. In fact, it is usually an option of last resort. But the Court may appoint a deputy where:
- a decision is in dispute;
- the decision is complex or difficult; or
- ongoing decisions need to be made for a vulnerable person.
That is why it is strongly advisable to appoint an attorney for health and welfare decisions before you lose capacity. If you subsequently lose capacity – and only then – your attorney will have the power to make decisions regarding things like:
- your daily routine – washing, dressing, eating etc.;
- your accommodation, including when to move into residential or nursing care;
- your medical care;
- whether and to what extent you should receive life-sustaining treatment.
Property and Financial Affairs
This gives an attorney or deputy the power to make decisions about your money and property. Typically, this will include:
- collecting your pension or other benefits;
- managing your bank or building society account(s);
- paying your bills;
- selling your home.
You can decide the criteria for when and in what circumstances a property and financial affairs LPA can be used.
Who can act as an attorney or deputy?
If you are making an LPA, you can choose as your attorney anyone over the age of 18 who has mental capacity. This might be your spouse, partner, another member of your family, a friend, or even a professional attorney such as a solicitor. More than one person can be appointed and you can also appoint one or more attorneys in reserve to step in should an attorney be unable to act.
If you have more than one attorney, you may decide that they can act jointly and severally which means they can make decisions on their own or together. Alternatively, you can specify that they should act jointly, which means they must all agree before any decision can be taken. Or you may decide a combination of the two is appropriate – joint and several for some types of decision and joint for others.
If you have lost mental capacity, anyone over 18 can make an application for a deputyship order, provided they do not have a criminal record and have never been declared bankrupt. It is often preferable that more than one person applies so they can act jointly and severally, but unlike an LPA, you have no control over this.
Cost and time
An LPA provides you with complete control over who is appointed to make decisions on your behalf and look after your affairs. It also enables you to determine the extent of their authority. But there are other advantages to making an LPA.
Cost is a consideration. It is significantly cheaper to make an LPA than for others to have to apply to the court for a deputyship order once you lose mental capacity.
Time is also a factor. Once you decide to proceed, an LPA usually takes around three months to become effective. This includes the not inconsiderable time taken by the OPG to register the LPA, which is currently in excess of 6 weeks. However, by contrast, the court can take a year or more to process an application for deputyship. In the meantime, there might be considerable difficulty in making decisions on your behalf and managing your affairs.