It’s very important to consider the possibility that you may not always be able to deal with your own affairs. You may suffer a brain injury in your life. You may get old and get dementia. There are many different reasons why you may not always be able to deal with your own affairs. Certainly too many to list them all here. But who deals with your affairs if you find yourself in such a situation? That will end up being either an attorney or a deputy, depending on whether or not you plan in advance.
What is an Attorney?
Firstly, you need to get your head out of American police procedural drama shows. In the US, the term attorney tends to be used to describe a lawyer i.e someone who has been appointed to deal with the legal matters of another person. This is not the case in Britain. We don’t use this term. In fact we don’t really use the term lawyer. In Britain the term lawyer is an umbrella term used to describe anyone who works in the legal profession, from a paralegal all the way up to a law lord in the Supreme Court. But I digress.
In the UK the term attorney refers to an individual who has been appointed to make decisions over the affairs of another person in the event that that person loses mental capacity. It is important to note that an attorney is appointed by the person giving the power themselves while they still have the capacity to do so.
In England and Wales, this appointment is made by creating a Lasting Power of Attorney using the designated form as provided by the Office of the Public Guardian. Once the document has been created and signed by the correct people in the correct order, using the specified application forms, the LPA is then registered with the OPG and the document comes into effect.
A person who makes a power of attorney of any type is known as a donor.
There are 2 types of LPA – one for property and financial affairs, and one for health and welfare decisions. You can read more about them here.
What is a Deputy?
A deputy bares a lot of similarities with an attorney. They are appointed to make decisions over another individual in regard to their finances and health and welfare decisions. However, a deputy is not appointed by the person who needs the decisions making. They are appointed by the Court of Protection on behalf of that individual because they have already lost capacity to appoint someone as attorney themselves. This often occurs in cases involving individuals with disabilities, dementia, or other incapacitating conditions. Just like attorneys, deputies have a legal duty to act in the best interests of the person they represent.
A person who is the subject of a deputyship is known as a patient, or simply just P.
Just like an LPA, deputyships come in 2 types – one for property and affairs, and one for health and welfare.
Appointment Process
How an Attorney is Appointed
To appoint attorneys, the donor must voluntarily create a Power of Attorney. Specifically here we are talking about Lasting Powers of Attorney as these PoAs will continue to operate once the donor has lost capacity. There are also documents called General Powers of Attorney, but I won’t cover them in this article. they stop working once the donor has lost capacity and as such their uses are limited. If you want to know more about them then you can read here.
An LPA is made by filling in the prescribed form and then signing it in front of witnesses. It must be signed by the donor and all attorneys in front of a witness who must also sign. It must also be signed by a certificate provider. This is someone who certifies that the donor has capacity, knows the gravity of what they are doing, and also is not being coerced or forced in any way to do it.
Once the document has been signed and executed, it must then be registered with the Office of the Public Guardian before it can be used. This costs £82 each. After the OPG has returned the LPA documents stamped and registered, the attorneys can then potentially act. But….
In the case of a Property and Finance LPA only if the donor gives express permission to do so. In the case of Health and Welfare LPA only once they have lost capacity.
How a Deputy is Appointed
A deputy is appointed by the Court of Protection once the donor has lost capacity. The process of applying for a deputyship is far more arduous and expensive than applying for an LPA.
First the applicant must first notify at least 3 people that are relevant to the patient – typically close family – and the patient themselves of their intent to make the application. They must then be given an opportunity to respond and dispute if they wish.
Following this, provided there are no disputes, the applicant must then complete all the relevant forms.
In an LPA, someone must certify that the donor has the capacity to make the LPA. In a deputyship application, someone must also certify. But they must certify that the patient does NOT have the capacity to make an LPA. This can only be done by a relevant medical professional, and usually costs upwards of £500. The capacity assessor will fill in the part of the form that they are required to fill in, and this will accompany the rest of the paperwork in the application.
The bundle of paperwork can then be sent to the Court of Protection to file the application, along with a fee of £408. Once the court has made an order, the applicant must then tell P that the application has been made and also notify at least 3 other people of interest of the application.
This is only a brief synopsis and you can read more about the application process here.
Scope of Authority
Powers of an Attorney
The powers that an attorney has is determined by the donor in the form. The donor is able to limit the scope if they so choose. In some instances for example, they may wish to limit the scope of an attorney’s financial powers to purely domestic matters if they wish to appoint someone else to deal with their business matters. A donor may also allow their attorneys to make decisions over life sustaining treatment, if they are appointed under a health and welfare LPA.
Powers of a Deputy
The powers that a deputy have are determined by the Court of Protection. The scope of their powers are limited to what the Court of Protections believes is necessary for the deputies to perform their duties efficiently. It is worth noting though that a deputy must specifically request the powers to buy and sell property on behalf of the patient under a property and finance deputyship. Also, a deputy acting under a heath and welfare decisions deputyship is never able to make decisions over life sustaining treatment for the patient.
Accountability
Attorney Accountability
Attorneys are not supervised in what they do. But they are obliged to act in the best interests of the donor. If another attorney or individual close to the donor raises a concern about the behavior and/or actions of an attorney then they can voice their concerns with the OPG. The OPG has the authority to investigate any allegations of misconduct and can remove attorneys from an LPA if their investigations conclude that there has been misconduct.
Deputy Accountability
Deputies are subject to a more rigorous supervision by the Court of Protection. They must provide yearly reports and account for their actions. The level of supervision will vary dependent on the relationship between the patient and the deputy. Nevertheless, supervision is mandatory and also subject to a fee.
Conclusion
By and large, attorneys and deputies perform very similar roles, but they differ significantly in terms of their appointment and accountability. It is abundantly obvious that it is better to appoint attorneys while you have the capacity to do so, rather than leaving it to the Court of Protection to sort it for you. If you wish to get your LPAs sorted or you feel that there is someone in your life that may need a deputy appointed to deal with their affairs, then get in touch today.
