Both Court of Protection and Lasting Power of Attorney are applied in situations where a person doesn’t have the mental capacity to make their own decisions – however, the difference between the two lies in their assignment.
If you have the mental capacity to choose a person to manage your personal affairs, you would do so using a Lasting Power of Attorney. However, if you have lost your capacity to make decisions for yourself then you would need to apply to the Court of Protection in order that a decision can be made for you.
Court Of Protection
The Court of Protection exists to make a decision about someone’s financial and/or welfare matters for individuals who don’t have the mental capacity to make these decisions for themselves, for example, this often happens if a person develops dementia.
An order can also be made for a chosen individual, a deputy, to make ongoing decisions for a person using a Property and Affairs Deputyship Order or a Health and Welfare Deputyship Order.
Usually, the appointed deputy is a family member but deputies can also be friends or neighbours or a professional such as solicitor or accountant – as long as the individual acts in the person’s best interests and is able and willing to make the decisions.
An application to the Court can be made if ever there is a disagreement between the health care providers and the deputy, and a judge will make the decision in the person’s best interests.
Who Can Be A Deputy?
The Court has certain requirements potential deputies need to meet in order to be appointed as a deputy to make financial and/or welfare decisions on the person’s behalf.
Court requirements include:
- Being aged 18+
- Either a close family member or friend, or suitable professional
- Being able to demonstrate suitability to make financial decisions and declare what assets that person has
- A medical certificate that certifies the person doesn’t have mental capacity to manage their own affairs or make a particular decision
- You can instruct a solicitor to make the appointment of deputy on your behalf and ask for these costs to be paid from the person’s assets
The appointment fee is £365 plus an annual supervision fee to the Office of the Public Guardian that supervises deputies.
Lasting Power Of Attorney
A Lasting Power of Attorney (LPA) enables you to plan for the future by appointing someone to act on your behalf should you no longer be able to.
There are two types of LPA – one for health and welfare decisions, and one for property and financial affairs. A person can choose the same attorney for each LPA or both.
With the Property and Financial Affairs LPA, the individual can decide for the attorney to make decisions on their behalf straightaway and before they lose mental capacity. This provides more flexibility as the attorney can begin to act on their behalf while the person is still of sound mind.
Usually, there is no Court of Protection involvement. However, if something arises outside the scope of the LPA or if problems arise, then the Court can make decisions instead on behalf of the person and even appoint a deputy if needed.
Deputy Or Attorney?
While the appointed deputy and chosen attorney are similar in that they both make decisions on behalf of the individual, the deputy is chosen by the Court when the person has lost mental capacity whereas the attorney is chosen by the person when he/she has full mental capacity.
With an attorney, you are in control as you choose who will be your attorney and make decisions on your behalf when needed. You also have the support from the attorney sooner rather than later as a Property and Financial Affairs LPA can be used straightaway if the individual so wishes.
An LPA is quicker, easier and less costly to set up than appointing a deputy via the Court of Protection.
However, there are more legal safeguards in place with deputyships as the Court of Protection is involved in making sure the appointed deputy is making the right decisions that are in the best interests of the person. The Office of Public Guardian reviews the deputy’s decisions every year, which is why there is an initial cost as well as ongoing costs where a deputy is appointed.
It’s important you speak to a solicitor to find out more about the options before making a decision, to find the right solution for you.
How We Can Help You With Your Deputy Or Attorney Needs
Our solicitors are here to help with any legal needs you have with regard to the appointment of or potential issue with a deputyship or attorney, and will take the time to understand your circumstances and wishes fully in order to provide you with personalised advice and support.
We can assist with the application to be a deputy or the creation of an LPA, as well as assist with any disputes with appointed deputies or attorneys.
Furthermore, our thorough knowledge of this complex area of law means we can advise you on the pros and cons of deputyship and LPAs to help you realise which route is right for you.
To speak to one of our specialist solicitors about the Court of Protection or LPAs, or for assistance with becoming a deputy or appointing an attorney, contact us on freephone 0800 988 3674 or Chester Tel: 01244 311 633 or email advice@bartletts.co.uk
