20th January 2021
It can be difficult to even think about planning for a circumstance in which you lose the mental capacity to make your own decisions. However, with dementia and other neurodegenerative condition rates on the rise in the UK, it helps to be prepared and knowledgeable about what your options are in the event that one day you need to be.
Appointing attorneys under Lasting Powers of Attorney give you an option to choose people you trust to manage your affairs if you lose capacity. That opportunity is lost to you if you lose mental capacity. The only alternative is for your loved ones to apply for Deputyship application at the Court of Protection so the latter process is very expensive, time consuming and has yearly responsibilities to the Court of Protection.
The two processes are different but the option you have depends on whether you have capacity or not.
What is a Lasting Power of Attorney?
A Lasting Power of Attorney (LPA) is a legal document that allows you to appoint someone to assist you in making decisions, or make decisions for you (as your “attorney”), in case you lose the mental capacity to do so. The appointed person is known as the attorney, and you can choose an individual or multiple people to act as your attorneys.
There are two types of LPAs. One for Health and Welfare, the other for Property and Financial Affairs. It is always best to have both.. A Health and Welfare LPA will give the attorney the power to make decisions about your health, for example choosing a care home, consenting to having an operation if you are unable to do so, implementing your Do Not Resuscitate instructions or your Living Will. A Property and Financial affairs LPA will give the attorney the power to make financial decisions, for example paying bills, managing bank accounts, selling a home, and other financial issues.
To create an LPA, you need to choose your attorney or attorneys, fill out the correct forms, and register your LPA with the Office of the Public Guardian.
What is a Deputyship Order?
A Deputyship Order is a legal document appointing a person to act as a “Deputy” for someone who has already lost the mental capacity to make their own decisions. In this case, it is not possible to appoint an LPA. Instead, a Court of Protection will appoint a Deputy to act on behalf of the incapacitated person.
To create a Deputyship, a person must apply to the Court of Protection and have their application reviewed by a judge. Like an LPA, a deputyship can be for health and welfare or for property and financial affairs.
What are the differences?
Mental capacity is the ability to make your own decisions. To set up an LPA, a person must have mental capacity at the time they create the document. In the case of a Deputyship, the Deputy is appointed after the person has lost their mental capacity.
Cost and Timing
Creating an LPA generally takes between eight and 12 weeks and costs £82 to register each document with the Office of the Public Guardian if your income is over £12,000pa. In the case that you lose your mental capacity, your attorney can start acting on your behalf immediately.
If you lose mental capacity without an LPA in place, a Deputyship application can take between six and twelve months to set up. In addition, it costs at minimum £365 per application, and the fees often go up from there. Because it takes so long to set up a deputyship, this can impact your ability to quickly pay bills or set up care.
Choice and Control
When you set up an LPA, you have the ability to stipulate who will be in charge of your affairs and what powers they have. You can choose anyone over the age of 18 to be your attorney, and you can decide whether your attorney or attorneys can act independently or together. This helps ensure you retain input into how your affairs are handled.
In the case of a Deputyship, the family normally apply to the court to be your Deputy but if there is no one who can apply then the Court will appoint a professional Deputy.
A Court-appointed Deputy is under more supervision than an attorney in order to help protect the incapacitated person from financial abuse. The Deputy must make an annual report to the Office of the Public Guardian that details all expenditures made on behalf of the incapacitated person. In addition, the Deputy must take out an annual security bond, which acts as insurance for the incapictated person in the case the Deputy mismanages their funds.
An attorney and an LPA is under much less strict supervision. Unlike a Deputy, they are not obligated to report to the Office of the Public Guardian. While the Court can step-in if there is evidence an attorney is acting improperly, they are not monitored to the same degree as a deputy.
We know that thinking about the future can be stressful but the situation is worse if there are no attorneys appointed and it’s more expensive both in terms of time and money. We believe that everyone should be treated with respect, kindness and receive a personal service that meets their needs in a relaxed, un-rushed environment.
Elizabeth Middleton Solicitors is here to help you prepare for the future and ensure your wishes are followed, which is why our expert legal team specialises in Lasting Power of Attorney, Wills, Probate and Equity Release.
Don’t wait for life to happen – Get in touch today to learn more about our LPA services and gain the peace of mind that your future is taken care of.