Lasting Power of Attorney v Deputyship

Sumer Rana, private client solicitor at Hammersmith firm Hubbard Pegman and Whitney considers the Lasting Power of Attorney or Deputyship application pathway.

Life is full of unexpected events and unfortunately anyone can lose their mental capacity at any stage in their lives. It is often the assumption, that if an individual loses capacity, close relatives, such as spouses and children can access their finances. However, without the proper authority this is not possible.

At Hubbard Pegman and Whitney LLP, we highly recommend now more than ever given the current climate with Covid-19 that individuals create a Lasting Power of Attorney for property and financial affairs and/or a Lasting Power of Attorney for health and welfare.

If an LPA for property and affairs was registered, you could appoint attorneys to make a range of decisions including the buying and selling of your house and other assets, dealing with your tax affairs, operating bank and building society accounts and claiming benefits on your behalf. These can be used at your direction while mentally capable and also by the attorneys if you lack the capacity to make these decisions.

If an LPA for health and welfare were created, then attorneys appointed under this document can make decisions relating to your living accommodation and care, consenting to or refusing medical treatment on your behalf, and on day-to-day matters such as diet and dress. This can only be used, however, if you have lost the capacity to make decisions for yourself.

LPAs are a powerful and effective document which give peace of mind to the person to whom the application relates knowing that they have appointed people they trust to manage and safeguard their affairs.

However, at HPW Solicitors we also understand that sometimes for various reasons life gets in the way and people have not planned for the future by registering LPAs and they have lost mental capacity. In this situation, a deputy would have to be appointed.

Deputies can be either professional or lay people that are appointed under a court order by the Court of Protection. The court order specifies what the deputy can or cannot do. There are two types of deputies, one for property and financial affairs and one for personal welfare.

Whilst there are more forms to fill out in applying to become a deputy and it is more costly compared to the LPA and it takes more time for the Court of Protection to process the applications. There are benefits to a deputyship:

– A deputy is closely supervised and is required to provide annual accounts to the OPG showing what funds have been used for and their reasoning for their decisions.

– There is a legal requirement to notify at least 3 family members, therefore family members become aware of the proposed application which is a safeguard against abuse.

– In the application, a proposed deputy is required to go through a checklist of main duties and responsibilities which forms a personal undertaking to the person to whom the application relates.

Whether you would like to create an LPA or apply to become a deputy, it is recommended that a legal professional should be involved to provide advice and assistance. If there are mistakes in an application, this could result in your application being returned which would cost you time.

For further information about Court of Protection matters, please contact Outi Hubbard or Sumer Rana.