Deputyship and Lasting Power of Attorney, What’s the difference?

The main difference between a Lasting Power of Attorney and a Deputyship centres around a person’s capacity. If a person does not have capacity, they will be unable to make a Lasting Power of Attorney, however, an application might need to be made to the Court of Protection for a deputy to be appointed to manage their financial affairs or their health and welfare.

Capacity

A person will be judged to have capacity if they can communicate: the nature of a lasting power of attorney, who they would like to act as their attorney and in the case of a Property and Finance Lasting Power of Attorney, how the appointment of an attorney will enable another person to manage their finances.

If there are any doubts about a person’s capacity, an assessment will need to be completed by a medical professional or qualified social worker in order to evidence capacity.

Lasting Power of Attorney

A lasting power of attorney (LPA) allows a person, with capacity, to appoint family members, close friends and/or professionals to act as their attorneys. Replacement attorneys can also be appointed just in case an original attorney becomes unable to act for whatever reason.

There are two different types of Lasting Powers of Attorney: Property and Affairs LPA and Health and Welfare LPA.

A Property and Affairs LPA allows attorneys to manage a person’s financial affairs. This could include the management of any bills, signing cheques and could even include the sale of a person’s property to fund their care fees.

A Health and Welfare LPA allows attorneys to make health-related decisions such as where a person might live, what medication they take and could include the authority to give or refuse consent to life-sustaining treatment on behalf of the person.

Deputyship Order

If a person lacks capacity, you can apply to become someone’s deputy through the Court of Protection. This is known as a deputyship application. A person might lack capacity when they have dementia, severe learning difficulties or have suffered a brain injury. A capacity assessment will need to be completed to confirm that a person does not have capacity before you can apply to be a deputy.

There are two types of deputyship orders: a property and financial affairs deputyship and a personal welfare deputyship. These mirror the different types of LPA.

Property and Financial Affairs Deputyship

Once a deputyship order has been granted by the Court of Protection, the deputy would have the authority to make financial decisions on the person’s behalf.

Personal Welfare Deputyship

If a deputyship order has been granted by the Court of Protection, the deputy would normally have authority to make specific decisions regarding a person’s day-to-day medical treatment (which could include life-sustaining treatment), where a person lives and any matters relating to their personal care. It is important to note that these orders are increasingly rare and supporting evidence would need to be strong in order for the Court to grant this order.

If you would like more advice and guidance regarding Lasting Powers of Attorney or putting a Duputyship in place…Talk to Tollers on 01604 258558 experienced Trusts and Estates and Elderly and Vulnerable team who are on hand to sensitivity advise and guide you through the process.

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