GlasshiLL

1. Court Of Protection

The statutory role of the Court of Protection is to appoint, replace or remove a Deputy or Deputies to act for someone who cannot manage their affairs because of he/she is incapacitated and has not made an Enduring Power of Attorney [EPA] or Lasting Power of Attorney [LPA}prior to his/her incapacitated.

What the Court of Protection areas do we cover?

• A Property and Financial Affairs Deputy will look after a person's financial and physical assets, for example their rent or mortgage payments, bills, investments or pensions.
• A Personal Welfare Deputyship Order relates to the management of important care or medical decisions.

Deputyship

What is a deputyship order?

• A Deputyship Order is a legal document which enables elected representatives to make important financial and welfare decisions on behalf of a person who has lost the capacity to handle their own affairs as a result of dementia, a brain injury or severe learning disabilities.
• A Deputy is appointed by the Court of Protection after a person has lost their mental capacity (or in cases where a person has never had mental capacity).

2. Office of the Public Guardian [OPG]

The OPG helps an individual to stay in control of decisions about their health, welfare, and finance to make important decisions for others who cannot decide for themselves.

What are of OPG service areas do we cover?

There are 2 types of LPA:

• Lasting Power of Attorney for Health and Welfare.
• Lasting Power of Property and Financial Affairs.

3. What is Lasting Power of Attorney?

A Lasting Power of Attorney (LPA) is a document you can make to appoint individuals to make decisions on your behalf in relation to either your Property and Finances or Health and Welfare.

4. Can a registered Lasting Power of Attorney (LPA) be used whilst the donor still has capacity?

It depends on what type of Lasting Power of Attorney (LPA) is being considered. A registered property and financial affairs LPA can be used while the donor still has capacity, unless it specifies that it cannot.

In contrast, a health and welfare LPA can only be used when the donor no longer has capacity to make the particular decision affecting their health or personal welfare.

5. Differences between LPA and Deputyship

a. Mental Capacity Assessment

A person must have mental capacity at the time he/she makes the LPA document. A person must understand the concept of handing over responsibility for his/her affairs to someone of his/her choice. The LPA documents must be registered with the Office of the Public Guardian (‘OPG’) before it can be used. Whereas a Deputyship Order [“DO”] can only be made on behalf of another person if he/she already lacks mental capacity. A DO application cannot be made in advance of a person losing his/her capacity. The person for whom the DO is being made does not need to agree or consent to the application, but they do need to be notified as part of the legal process.

In summary, attorneys are appointed in an LPA before mental capacity is lost. A Deputy is appointed by the courts after mental capacity has been lost.

b. Autonomy

Under an LPA, you [applicant] are free to nominate a person of choice as long as the person has mental capacity and aged 18 and above. You are at a liberty of nominating one or more attorneys. Whereas, with a DO the Court of Protection will decide whether the person making the application is suitable to act as your Deputy, for instance the Court of protection may appoint someone that you would not actually have chosen yourself to make decisions. In certain circumstances, the local authorities may take on the role of the deputy where a person has no close family or friends able or willing to act. Generally, a Deputy will only have powers over your Property and Finances. Depending on the circumstances of a person, the Court of Protection may grant Health and Welfare Deputyships application.

c. Timings

According to the OPG guidelines, an LPA application can be written, completed and registered with the OPG in 8-12 weeks prior to the person’s losing his/her mental capacity. Once it is registered, your Attorneys can act for you immediately if required, so there will be no delay in accessing much-needed funds in an urgent situation. Whereas, the time of processing and appointing a deputy depends on the circumstances of a person and the court of protection time table. It can be argued that appointing a Deputy is not a quick process. For example, the court application takes around 4-6 months or more.

d. Cost

An LPA costs less than a DO. According to the OPG, the application cost of making an LPA is £82 including its registration whereas the application fee for making making a single Deputyship application is £385 and an annual supervision fee of £325 once a Deputy has been appointed. If a Solicitor assists you in making those applications, such solicitor will charge you separately.

e. Supervision

A Deputy is under the direct and stringent supervision of the Court of Protection. This is to ensure that a Deputy is acting correctly and appropriately. For example, a Deputy is required to submit an annual report to the OPG accounting for all expenditure made on behalf of the applicant. Whereas, an attorney is not subject to any control and supervision. Furthermore, an attorney appointed under an LPA is not required to report to the OPG because of the autonomy of the applicant to choose whoever he/she prefers to manage his/her affairs. Of course, the OPG may intervene if there are reasons of impropriety alleges against the Attorneys.