Lasting Powers of Attorney and Deputyship

When a family member loses mental capacity, it can be an extremely stressful and at times lengthy process to obtain the legal authority to begin acting on somebody else’s behalf to assist with their financial affairs or their health and welfare affairs. Far too often, a person will delay setting up a Power of Attorney in the belief that they will never lose mental capacity, which may lead to undesirable consequences for their assets and wishes.

When should I start thinking about Lasting Powers of Attorney and/or Deputyship?

It is often the case that individuals will begin thinking about Lasting Powers of Attorney (LPAs) later in life. However, the documents can seem daunting and most wish that they will never have to worry about losing mental capacity. Delaying the setting up of these documents, however, can lead to complications later in life.

The most notable difference between Lasting Powers of Attorney and Deputyship Orders is timing. Lasting Powers of Attorney are set up prior to losing mental capacity and are often seen as a safety net, in case somebody were to lose capacity. Deputyships on the other hand, are seen as last minute applications, where somebody has lost their mental capacity with no tools in place to assist the person in question in regards to their finances.

Lasting Powers of Attorney and Deputyship Orders both grant individuals the legal authority to act on somebody else’s behalf. However, there are notable differences between the two. This brief guide to Powers of Attorney and Deputyship Orders will outline some key differences between both legal tools and why Lasting Powers of Attorney are a valuable document, which all individuals should consider setting up.

Lasting Powers of Attorney

Setting up Lasting Powers of Attorney are a way of planning your future, in the event that you lose your mental capacity. There are many different reasons why you might lose mental capacity; for example if you have dementia or suffer a serious brain injury. The individual who sets up the Power of Attorney is known as the ‘Donor’ and they may appoint ‘Attorneys’; people they trust, to help manage their financial and health affairs. Attorneys may be family members, close friends or professionals such as solicitors and it is possible to appoint more than one attorney.

There are two types of Lasting Powers of Attorney; Property & Finance and Health & Welfare. Both documents allow your attorneys to take over your affairs in the event that you lose mental capacity. A Property & Finance Lasting Power of Attorney allows your attorneys to take control of your bank accounts, sell your property and arrange for payments of utility bills. It is possible to include provision in the document to allow the LPA to be used as soon as it is registered but only with your express permission. Health & Welfare LPAs on the other hand, can only be used once the Donor has completely lost mental capacity and allows your attorneys to make decisions about the type of care you will receive, where you will live and it is possible to give them the authority to refuse life-sustaining treatment on your behalf.

It is important to note that LPAs can only be made whilst the Donor has mental capacity, therefore it is paramount that they are made sooner rather than later. They are registered via the Office of the Public Guardian and it is advised that they are registered straight away so that in the unlikely event that capacity deteriorates rapidly, your attorneys can get to work straight away.

Deputyship Orders

If you lose mental capacity and have no LPAs in place, there are no legal tools in place to allow individuals to assist with your finances which could cause you issues. In this scenario, an individual would have to apply to the Court of Protection to gain the legal authority to manage your finances via a Deputyship Order. In this instance, the Court would appoint who they feel is appropriate to manage your finances and this could be a family member or professional.

The process in applying for a Deputyship Order is often lengthy and costly and can lead to frustration where a family member is waiting for several months until they are able to step in and help with your finances. It is, however, possible to apply for an emergency Deputyship in exceptional circumstances. An appointed Deputy is limited to the rights contained within the court order and is required to serve formal notice to all individuals concerned. A Deputy is also often required to report to the Court of Protection and required to keep records of all transactions made. In some cases, a court official may even visit you to make sure that you are fulfilling your duties. This level of supervision does not pertain to an attorney appointed under an LPA and therefore a Deputy will often find that the work is much more strenuous than that of an attorney.

In short, you should consider setting up a Lasting Power of Attorney before it is too late. When you lose mental capacity, it is often your loved ones that struggle with the consequences and it can be difficult to help you when documents are not set up prior to loss of capacity.

If you would like to speak with a member of our staff about Lasting Powers of Attorney or Deputyship Orders, please contact us.