What is the difference between a lasting power of attorney and deputyship?

A lasting power of attorney or LPA is a document in which you appoint individuals to make decisions on your behalf. 

There are two types of lasting power of attorney:

• Property and financial affairs
• Health and welfare

Many people will have heard of an LPA before. An LPA gives attorneys the power to help with or make decisions on behalf of the affected donor when they can no longer make decisions themselves.

Deputyship is a lesser-known term. Deputyship is similar in that an appointed deputy can make decisions and manage the affairs of another person when they have lost mental capacity. 

The Court of Protection appoints a deputy after a person has lost their mental capacity or where a person has never had mental capacity.

Dementia cases in the UK are rising, and the chances of needing someone to make decisions on your behalf is increasing. It is therefore important to understand your options.

The roles of an attorney and a deputy are similar, but there are some key differences:

1. Mental capacity

To make an LPA, you have to have mental capacity. You need to understand the concept of handing over the responsibility of making decisions on your behalf to someone else. 

An application for deputyship is made by the proposed deputy who applies to the Court of Protection to be appointed. 

A deputyship order can only be made where the person the order is made on behalf of already lacks mental capacity. You cannot make an application for deputyship in advance of someone losing their mental capacity. 

The person for whom the deputyship order is being made does not need to consent to the application, but they need to be notified as part of the legal process.

2. Choice

With an LPA, you can choose who will act for you as your attorneys and make decisions on your behalf. This is subject to the attorney being over the age of 18 and having mental capacity. You can have more than one attorney who can act together or independently.

With a deputyship order, the court will decide whether the person making the application is suitable to act as your deputy. 

The court may appoint someone you would not have chosen yourself to make decisions. For example, in cases where no close family is able or willing to act, local authorities may take on the role of deputy. On occasion, the court selects solicitors or other professionals to act.

Generally, a deputy will only have powers over your property and finances. Health and welfare deputyships are rare and are very strictly limited due to the difficult nature of appointing someone to make medical decisions on your behalf without knowing your wishes. 

Decisions regarding these issues can usually be made in the person's best interests by those providing care or treatment.

3. Timings

An LPA can be written and registered by the Office of the Public Guardian in 8-12 weeks. An LPA will be completed in advance of you losing mental capacity. Once registered, your attorneys can act for you immediately if required.

Appointing a deputy is a much slower process. If you lose mental capacity without an LPA in place, the court application takes around 4-6 months. In the meantime, no one will be able to make a decision or access your funds to care fees or any bills. This can cause issues should you require care or if your proposed deputy needs to sell a property or other assets to release funds.

4. Cost

An LPA is significantly cheaper than a deputyship with regard to legal fees. In addition, it costs £82 to register an LPA with the Office of the Public Guardian, whereas the court of protection fee alone for the application is around £371. 

Once you have been appointed, you must pay an annual supervision fee depending on what level of supervision your deputyship needs.

There is also a fee for the surety bond if the court requires one to be set up, but this varies dependent on the size of the affected person's assets. The surety bond is paid annually and will depend on the size of the affected person's estate. 

The surety bond (also known as a security bond) is insurance that protects the person's assets whose affairs and property the deputy is managing. 

5. Supervision

The level of supervision for an attorney and a deputy is very different. There are rigorous controls to ensure that a deputy is acting properly. This includes submitting an annual report to the Office of the Public Guardian, accounting for all expenditure made on the person's behalf. 

An attorney appointed under an LPA is not required to report to the Office of the Public Guardian. This is because the court takes the view that you have chosen your Attorneys yourself, and they trust that your judgement is correct. 

In some circumstances, the court may investigate an attorney if they receive a report to suggest that they are acting improperly. However, strict ongoing supervision is generally not deemed to be necessary.

Having a lasting power of attorney in place is quicker, cheaper and ensures that you can choose who will act for you and make decisions on your behalf, should you be unable to do so in the future. However, if you were to lose capacity in the future and have not made an LPA, a deputyship application can be made to allow someone to manage your affairs.

Please do contact our private client department should you wish to have a lasting power of attorney in place or indeed if you need to apply to the Court of Protection for an application for deputyship. 

Our team of solicitors in Eastbourne, Brighton, London, Hastings and Uckfield can help you understand your options.