We write a lot about Lasting Powers of Attorney, mainly because as solicitors we see what can happen when one isn’t in place. For reference, a Lasting Power of Attorney is a document which can be made by anyone over the age of 18, which appoints trusted people (attorneys) to manage their affairs and finances should they lose the capacity to make their own decisions. Essentially, it is an insurance that should the worst happen, and you suffer an accident or illness that removes your independence, someone you trust will be able to ensure that you and your loved ones are looked after. When making a Lasting Power of Attorney, you can also decide if you would like the document to be used immediately or to be saved for a moment when your mental capacity has diminished.
It’s important to remember that a Lasting Power of Attorney can only be granted when the person giving power (donor) is deemed to have full mental capacity. They cannot be put in place if the donor already lacks the capacity to make their own decisions. In these cases, an application needs to be made for a Court of Protection Deputyship.
Applications for a Court of Protection Deputyship can be made by family members, friends, solicitors, or other organisations and the person giving power must undergo an assessment to confirm that they do indeed lack the capacity to make decisions for themselves. This is then processed by the Court.
In order to ensure that decisions are made in the best interests of the person giving power, deputies are required to comply with the terms of the order and file yearly accounts to the Office of the Public Guardian.
While both processes allow others to manage the affairs of someone else, the most striking difference is that the option of choice is removed. While a person choosing to appoint attorneys can make a decision about who they trust to look after their health and finances should they become mentally incapacitated, a Court of Protection Deputyship puts that decision in the hands of the Court. This means that the Court will make a decision based on the information they are given, rather than the individual’s wishes.
If you would like to discuss appointing attorneys to manage your affairs, have been appointed an attorney and need advice, or would like legal advice on a Court of Protection Deputyship, our legal team are here to assist and advise. Email to make an appointment or call our office.