Whether this is something that you are considering for yourself or in relation to a family member or another loved one, it is essential to understand the differences between Lasting Powers of Attorney (LPA) and a Court of Protection Deputyship order. This can make a huge difference to the processes and decisions that can be taken if an individual loses the capacity to make their own decisions in the future, in relation to everything from health and welfare to finances and property.
What is an LPA?
An LPA is a legal document arranged by an individual (known as the donor) that appoints specific people (known as attorneys) they trust to make decisions on their behalf in the future, if they are no longer able to do it for themselves.
There are two types of LPA:
- Health and welfare – making decisions in relation to medical needs, day-to-day care and things like moving into a care home.
- Property and financial affairs – making decisions in relation to finances, such as bills, tax, banking, pensions, benefits, investments and property the individual may own.
Different people can be appointed for these two areas if required, which can be really useful if there might be someone better suited for managing health decisions than financial ones, or vice versa.
LPAs can be put in place at any time, so any adult can arrange to put in place an LPA, although it needs to be done before mental capacity is lost.
If someone with an LPA still has capacity to make decisions for themselves but wants some assistance from the attorneys in making them, this can be done using the LPA. This is only relevant in relation to the property and financial affairs LPA. The health and welfare LPA can only ever be used if mental capacity is lost.
There is no need for a mental capacity assessment to be done when someone sets up an LPA, unless there are doubts regarding their capacity at this time.
If both types of LPA are in place and the individual does later lose capacity, the attorneys have the powers to make most major decisions on their behalf.
An LPA can take up to 20 weeks to be registered if there are no issues with the application.
What is a Deputyship Order?
A deputyship order is needed if someone lacks the capacity to make decisions for themselves but there is no LPA in place. An application needs to be made to the Court of Protection by someone, known as the deputy, to be able to make the necessary decisions. The individual has no say in who the deputy might be.
Once a deputyship order is granted, the deputy will have limited powers in comparison to someone named on an LPA.
Before the deputyship order is granted, a mental capacity assessment of the individual will need to be made, which can be a lengthy process in some cases.
There will need to be further applications made to the Court of Protection if the deputy needs to manage affairs related to the individual’s main residence.
The deputy needs to ensure that annual accounts are kept in relation to any financial transactions made on the behalf of the individual.
There may be supervision inspections made on the deputy to ensure that they are acting appropriately and in what is considered the best interests of the individual.
It can take more than 12 months for a deputyship order to be granted in some cases.
Applying for a deputyship order is usually significantly more costly than setting up an LPA.
What makes an LPA more beneficial than a deputyship order?
In summary, an individual choosing to put an LPA in place has several benefits over having to rely on a deputyship order, if they are to lose capacity for decision-making at some stage. These include, but are not limited to:
- Someone setting up an LPA can choose who will be making decisions for them. There are no such guarantees that an appointed deputy by the Court of Protection will be someone who is known and trusted by the individual.
- Setting up an LPA is usually considerably quicker than the application process for a deputyship order. This can be a real issue if urgent decisions need to be made.
- Setting up an LPA is usually considerably cheaper than the process for getting a deputyship order.
When is it too late to set up an LPA?
It is too late to set up an LPA if the individual is deemed to now lack the mental capacity to make their own decisions. This is why it is best to arrange an LPA when the individual is unquestionably able to do so, even at what could be considered a young age to do so.
If you want to find out more about LPAs or any other ways to help prepare for your future, the team at Gamlins can help. Get in touch to find out more on 01492 860420 or by emailing firstname.lastname@example.org