Lasting powers of attorney (LPAs) and Deputyship Orders share some similarities, giving people the legal authority to act on your behalf when you lose mental capacity. However, plenty of key differences between the two are essential to understand. This blog will explore these two legal tools, how each can be used, and how you can utilise them to your benefit.
What Are Lasting Powers of Attorney?
LPAs allow individuals to nominate trusted people to make decisions on their behalf in situations where they lack mental capacity due to illness or an accident. It grants attorneys you select to make decisions on your behalf, giving greater control over your future finances and well-being.
There are two types of LPAs: an LPA for financial decisions and an LPA for health and care decisions. The financial LPA covers various aspects, such as property management, bill payments, and investments. It can come into effect when you still have mental capacity or once you have lost it – you will decide when establishing it. Attorneys can be restricted in their actions or free to make all decisions on your behalf.
An LPA for health and care decisions can only be activated once you have lost mental capacity. Attorneys can decide on medical care, living arrangements, and visitation rights. Additionally, you can provide instructions to attorneys regarding any life-saving treatments you wish to receive. Setting up both LPAs to cover all aspects of your life is possible and ensures peace of mind no matter what the future holds.
Mental capacity refers to a person’s ability to make decisions and act in their best interests. This includes understanding information relevant to a decision, retaining it, weighing the options and consequences of different choices, and communicating their decision.
Mental capacity is not a fixed trait but can vary depending on the complexity of the decision to be made, your level of cognitive functioning, and any impairments or illnesses that may affect your ability to make decisions. Doctors or psychologists can assess mental capacity, and it is often used to determine whether you require additional support or intervention to make decisions in your best interests.
You must establish an LPA while you still have mental capacity and can still make decisions for yourself. Otherwise, it will not be valid, and a Deputy may be appointed on your behalf instead.
What Are Deputyship Orders?
If you lack an LPA and lose mental capacity, it creates a situation where no one is authorised to make decisions on your behalf. Therefore, it may be necessary to apply for a Deputyship Order. The Court of Protection can appoint a suitable Deputy to make decisions on the individual’s behalf, similar to an attorney. However, a deputy’s powers are more limited, and the court decides who should be appointed as a Deputy, unlike EPAs or LPAs, where you retain control over who makes decisions for you.
Applying for a Deputyship Order can be lengthy, which may create difficulties for loved ones, especially if immediate action is required. The applicant must serve formal notice to a specific group of people, including those who need decisions made for them, even if they have lost capacity and need help understanding. All notified individuals have the right to object to the application if they believe it is inappropriate, but there are strict grounds for when and how a person can object.
Deputies are subject to more extensive supervision than attorneys. They must report to the Court of Protection and maintain records of all decisions and transactions made on behalf of the person who lacks capacity. Sometimes, a court official may visit them to ensure they are fulfilling their duties correctly.
During the first year of a Deputyship, they will be monitored at a “general” level. Court of Protection visitors will contact them and may conduct in-person visits to verify that they understand their role, have adequate support, and are fulfilling their responsibilities appropriately. Deputies will be informed of the purpose of each visit, and arrangements will be made in advance.
If a Deputy manages less than £21,000 and is considered not to require general supervision, they will only be subject to “minimal” supervision after the first year. However, general supervision will continue if they manage more than £21,000.
Deputies are responsible for paying fees to the Court of Protection for the expenses associated with this oversight. Nonetheless, the court’s goal is to assist them in serving as the Deputy to the best of their ability to benefit those lacking capacity.
LPAs and Deputyship Orders ensure that someone is legally authorised to make decisions on your behalf if you lose mental capacity. However, LPAs provide greater control and flexibility, allowing individuals to choose and trust the people who will make decisions for them. In contrast, Deputyship Orders involve more court oversight and restrictions on decision-making powers but are more expensive and time-consuming for your loved ones to manage.
It is essential to plan for the possibility of losing mental capacity. Establishing an LPA ensures your future is protected and your wishes are respected even if you lose mental capacity. Get in touch with The Planning Bee today to discuss your options with our team of legal experts.