Deputyship Orders in the Event of Not Having Lasting Powers of Attorney

Lasting Powers of Attorney (LPA) is a legally binding document that allows people to appoint a person of their choosing to make decisions for them. They are often created in preparation for, if, or when an individual loses mental capacity and cannot make decisions for themself. 

Though LPA’s must be agreed upon when the person in question is mentally sound, a large percentage of people do not have them in place in case of an accident or illness. This is where deputy orders come in. They are appointed when someone has already lost the capacity to make decisions for themself, enabling someone to step in to make the decisions for them. 

What is a Deputy?

A deputy is someone appointed to be legally responsible for someone who is in some way impaired, whether that is in the case of a stroke, dementia, or other condition. The Court of Protection usually appoints friends or family members of the person who lacks capacity as a deputy.

Deputies can be responsible for the finance, property, medical care, and healthcare of a person. However, this can vary depending on what is needed at the time. 

There are a few requirements involved in becoming a deputy, including:

  • Being over eighteen
  • Completing application forms (with a payable fee)

Applications are considered by a judge in the Court of Protection, although a court hearing is not needed. Following the consideration of applications, close family members are notified of the appointment. If they are unhappy with the appointment, they can object. However, this causes the process to take up to six months.

There can be two or more deputies for the same person. They can make decisions together in a joint deputyship or separately. If friends or family members are unavailable to act as deputy, the court may appoint a ‘Panel Deputy’ from an approved law firm or charity. 

What Must Deputies Do?

There are five requirements in the Mental Capacity Act of 2005 that outline what deputies must do when appointed. These are:

  • They must act in the best interests of the person who lacks capacity in everything they do.
  • People must be assumed to have the capacity to manage their affairs unless proven otherwise.
  • Deputies must offer and provide help if an individual is considered unable to make decisions alone.
  • Deputies must ensure that any decisions made for the person do not restrict their human rights or restrict them the least.
  • Individuals can make unwise or eccentric decisions, for instance, regarding financial affairs, without being considered to lack capacity.

Deputies must also consider what the other person has done in the past when making decisions on their behalf. Government guidance additionally outlines that deputies must:

  • Offer a high standard of care.
  • Do everything possible to help the other person understand what decisions are being made for them.
  • Include decisions made in their annual report to the Office of the Public Guardian 

What Are Deputies Unable To Do?

Though there are many things deputies can do, deputies have certain restrictions on their powers. These restrictions limit them from the following:

  • Creating a Will
  • Physically restraining the person, unless to prevent them from harm
  • Controlling who the person talks to
  • Rejecting life-saving medical treatment

If deputies are found to be breaking these restrictions, legal action may be taken. 

It should be noted that deputies are supervised to different levels. They are also regularly assessed. Supervision can include Court Visitors evaluating how the deputyship is managed, period reports, or ongoing support. 

For the first year, all deputies will receive a general level of supervision, which moves to minimal supervision if:

  • The deputy is managing less than £21,000
  • The deputy no longer needs general supervision

Key Differences Between a Deputy and LPA

As previously mentioned, the main difference between a deputy and someone with an LPA is that the LPA is created before an individual has lost the capacity to make decisions for themselves. 

However, there are other differences to be aware of. These include:

  • LPA’s can be set up for health, welfare, property, and financial situations. However, deputies are mainly appointed to take care of financial and property affairs. They are only rarely appointed for health and welfare. 
  • Deputies report to the Office of the Public Guardian each year to clarify expenses and spendings, whereas those with an LPA do not.
  • Deputies are required to take out an insurance policy called a security bond to protect the person’s funds in case of deputy fraud or mismanagement. Attorneys do not need to.

In addition to the above, it is essential to consider that the application for deputyship can last for up to six months and can be somewhat expensive. Meanwhile, an LPA is already set up.

Another aspect to contemplate is that you will have complete control over who you appoint as your attorney when considering an LPA. However, as deputies are appointed when you are deemed to have lost the capacity to decide for yourself, you have no control over who this person is. 

Contact Us Today

Understanding LPAs and deputies can be confusing and overwhelming. However, here at The Planning Bee, our friendly and reliable team can help clear this up.

If you would like to find out more, contact us now to arrange a free, no-obligation consultation.

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