Introduction
Powers of Attorney and Deputyship are legal arrangements that grant decision-making authority to individuals on behalf of someone who lacks mental capacity. While both serve a similar purpose, there are significant differences between the two. This blog post aims to shed light on the distinctions between Powers of Attorney and Deputyship, helping you understand which option may be more suitable for your specific circumstances.
Powers of Attorney: Granting Authority in Advance
A Power of Attorney is a legal document that allows an individual (known as the donor) to appoint another person (known as the attorney) to make decisions on their behalf. This arrangement is typically made when the donor still has mental capacity but wants to ensure that their affairs are managed smoothly in the future, in case they become unable to make decisions themselves.
Types of Powers of Attorney:
1. Lasting Power of Attorney (LPA): This type of Power of Attorney allows the donor to appoint an attorney to make decisions related to their personal welfare (healthcare, accommodation, and general well-being) and/or their financial affairs.
2. Enduring Power of Attorney (EPA): Prior to October 2007, EPAs were used to appoint an attorney for financial decisions. While they are no longer created, existing EPAs are still valid and can be registered if the donor loses mental capacity.
Key Points about Powers of Attorney:
- The donor must have mental capacity when creating the Power of Attorney.
- The attorney's powers come into effect either immediately or upon the donor's loss of capacity.
- Powers of Attorney are less expensive and involve less bureaucracy compared to Deputyship.
- The donor has more control over who will make decisions on their behalf.
- Attorneys must act in the donor's best interests and follow the principles of the Mental Capacity Act 2005.
Deputyship: Appointed by the Court of Protection
Deputyship is the legal appointment of an individual (known as the deputy) by the Court of Protection to make decisions for someone who lacks mental capacity and has not made a Power of Attorney in advance. Deputyship is typically sought when urgent or complex decisions need to be made, and there is no valid Power of Attorney in place.
Key Points about Deputyship:
- The Court of Protection must approve the appointment of a deputy.
- Deputyship can be sought for decisions related to health and welfare, finances, or both.
- The deputy is accountable to the Court and must provide annual reports and financial accounts.
- Deputyship involves more time, expense, and ongoing supervision compared to Powers of Attorney.
- The Court may impose restrictions or conditions on the deputy's authority.
Choosing the Right Option
When deciding between Powers of Attorney and Deputyship, several factors should be considered, including the donor's mental capacity, the urgency of decision-making, and the complexity of the individual's affairs. Seeking legal advice from an advisor specialising in this area of law can provide clarity and guidance in choosing the most appropriate option.
Conclusion
Powers of Attorney and Deputyship are legal mechanisms that enable individuals to make decisions on behalf of someone who lacks mental capacity. While Powers of Attorney are created in advance by the individual themselves, Deputyship involves the appointment by the Court of Protection. Understanding the differences between these two arrangements is essential to make informed decisions regarding the management of a person's affairs when they are unable to do so themselves. Consulting with legal professionals is crucial to navigate the complexities of applications to the Court of Protection.
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