I am often asked: “What is the difference between a Power of Attorney and Deputyship?”
The two roles of Attorney and Deputy are similar in a number of ways. Both Attorneys and Deputies are responsible for managing the affairs of another person. This can be in relation to financial matters, health and welfare matters or both. There are, however, a number of differences between the role of an Attorney and the role of a Deputy.
A Power of Attorney
A Lasting Power of Attorney is a legal document that allows you to appoint an attorney (or several attorneys) to make decisions on your behalf. There are two different types of Lasting Power of Attorney that can be put in place:-
- Health and welfare; and
- Property and financial affairs.
A Lasting Power of Attorneysets out which person (or people) an individual wants to be able to make decisions on their behalf should they lose mental capacity in the future. A Lasting Power of Attorney can only be put in place when an individual has the necessary capacity to do so. Once the document is in place, it will be ready to come into effect if the individual loses capacity to manage their own affairs in the future. In relation to property and financial affairs, the document can also be used whilst an individual still has capacity if the document has been drafted in this way.
If an individual loses mental capacity to make or articulate their own decisions and a Lasting Power of Attorney has not been put in place, this is where Deputyship becomes relevant. It will no longer be possible to put a Lasting Power of Attorney in place, but in certain circumstances it will become necessary for an individual (or individuals) to be appointed to manage the person’s affairs. As such, an application will need to be made for the Court of Protection to become involved. The Court of Protection can appoint an individual (or individuals) to act as a person’s Deputy.
The Court of Protection Deputyship process is lengthier and more costly than the Lasting Power of Attorney process. Once appointed, a Deputy will have to report to the Office of the Public Guardian each year to account for the funds that have been spent during the year; there is no such obligation on Attorneys appointed under a Lasting Power of Attorney. There may also be a “security bond” requirement on Deputies; this means that they have to take out an insurance policy each year which protects the individual who has lost capacity in case the Deputy mismanages their funds; again, there is no such obligation on Attorneys.
Whether you are considering Lasting Powers of Attorney or if you think a Deputyship application might need to be made in relation to a loved one, please do not hesitate to contact Girlings’ Court of Protection team with any questions or queries that you might have.
For further information, please contact Louise Wilson Tel: 01227 768374.