This week, we spoke to Abbie Marsh, trainee solicitor at My Law Matters, about the importance of making a Power of Attorney before it's too late.
Power of Attorney vs. Deputyship Order: which one do I need?
A Lasting Power of Attorney (LPA) and a deputyship order both give someone the legal right to manage your affairs when you can no longer make decisions for yourself.But a Power of Attorney can only be made while you still have the capacity to make decisions for yourself.
If you lose mental capacity without a Power of Attorney already in place, then sadly it’s too late.
Your loved ones would then have to apply to the Court of Protection for a deputyship order, granting them the right to make decisions for you and deal with your affairs, which are more difficult and expensive to obtain than an LPA.
This is why it is so important for you to ensure that you have LPAs in place whilst you can.
Read: Your complete guide to Power of Attorney
Who can act as my deputy or attorney?
Deputies and attorneys must meet two basic legal requirements:- They must be over 18 years old
- They must have the mental capacity to make decisions
An attorney or deputy is appointed to make decisions on your behalf for either:
- Property and financial affairs
- Health and welfare needs
If one person wants to act in both capacities, separate applications will have to be made for each LPA or deputyship order.
Pros and cons of Power of Attorney
Pros
- You’re in control
LPAs let you retain control over your life, with attorneys helping you make decisions and acting in your best interests when you’re unable to make decisions for yourself. While you have capacity, you can cancel the LPAs at any time, or remove an attorney.
- A smooth transition for loved ones
With an LPA in place, those who depend on you can get on with life without disruption. Your bills can be paid, your home can be managed. An attorney is legally recognised as acting on your behalf, and they will be treated by places like banks, hospitals, and law firms as if they are you in that respect.
Cons
- You need to put one in place before you become incapacitated
You can’t get an LPA if you can’t make decisions for yourself. If you have a sudden accident, you are diagnosed with an illness like dementia, or you’re otherwise incapacitated, you can’t get an LPA since you won’t have capacity to make this decision.
Pros and cons of a deputyship order
Pros
- You’re legally permitted to manage someone’s affairs
If someone needs to act on your behalf, a deputyship order lets them step in and take control – so long as you already lack mental capacity. They would need to explain to the court why they should be appointed as your deputy and obtain an order. It means that anyone can get help when they most need it, even without an LPA.
Cons
- It’s a lot more expensive
Applying for Court of Protection deputyship costs a lot more than an LPA (in some cases, three or four times more). In addition to the application fee, you or your deputy must also pay annual fees. If the court decides the application demands a hearing, there will be further costs.
- There’s a lot of paperwork
Unlike an LPA, which is a single document, becoming someone’s deputy requires a lot of time-consuming and complicated form-filling. After the application, deputies must then officially inform the person they want to help, as well as three people who know the person, such as doctors or social workers. If you don’t want your loved ones to deal with this during a difficult time, making a Power of Attorney is as kind as it is essential.
- Deputyships are more restrictive
Deputies have far fewer freedoms than an attorney. Decisions often need to be approved by the Court of Protection, new deputies are placed under supervision, and an annual report must be completed accounting for all decisions.
Which is more expensive, a deputyship order or Power of Attorney?
A Power of Attorney costs between £100 and £1000, depending on the complexity of your circumstances.All LPAs must be registered with the Office of the Public Guardia (OPG), where there’s a fee of £82. So, if you want to register both types of LPA, it’s a minimum of £164 – plus legal fees.
OPG charges will usually be included in your legal fees when using a solicitor.
Costs for a Court of Protection deputyship order are:
- Application cost: £365
- Additional court hearing: £485
- Approved deputy registration fee: £100
- Annual general supervision fee: £320
- Annual minimal supervision fee: £35
A property and financial affairs deputy might also be asked by the courts to pay a security bond, which protects a person’s finances.
When should I make a Power of Attorney?
There’s no right moment or perfect time to make a Power of Attorney.Today. Tomorrow. On a Wednesday when the moon shines brightest. It’s your choice. Because it’s an insurance policy for the future, you should get one as soon as you can – whatever your circumstances, whatever your age.
If your life circumstances have changed significantly – maybe you’ve recently married, divorced, or bought a home – then that’s always a good time to make sure your legal affairs are up-to-date and sorted.
When should I apply for a deputyship order?
Your loved ones would need to apply for a deputyship order once you have lost capacity, if you do not already have an LPA in place.The application and approval process can take anywhere between 4 – 18 months to complete, and there’s a lot of forms to be filled in and regular reports to be filed. Because of this, it’s best to act swiftly to allow for a smoother transition and greater peace of mind that it’s being sorted.
If you’re worried about needing Power of Attorney or a deputyship order, the best thing to do is chat to a solicitor who can explain how best to navigate the process so you and your loved ones can get on with enjoying life.
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