When someone loses the capacity to make decisions for themselves, nominated individuals may step in and make decisions on their behalf. The power to do so might derive from a Power of Attorney or a Deputyship Order. Here, our specialist Court of Protection solicitors consider the question ‘Deputyship vs Power of Attorney – which is better?’
At Simper Law, we regularly guide clients through the procedures involved in connection with both Powers of Attorney and Deputyship Orders. We will provide compassionate, clear advice tailored to your circumstances and those of your loved one and be by your side every step of the way.
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What Is A Power Of Attorney?
A Power of Attorney is a legal document whereby a person, known as the donor, appoints another person, known as the attorney, to make decisions on their behalf. They only come into effect when they are needed. This means that you essentially put safeguards in place so that people you know and trust will take over control of your affairs if you ever lose capacity to manage them yourself.
The most common form of Power of Attorney in the UK is a Lasting Power of Attorney, also known as an LPA. There are two kinds of LPAs, as follows:
- A Property and Financial Affairs LPA. This type of LPA covers decisions about a person’s finances, property, bills, pensions, and investments.
- A Health and Welfare LPA. This type of LPA covers decisions about a person’s medical care, daily routines, and living arrangements.
What Is A Deputyship?
Deputyships are different from Powers of Attorney. While both arrangements deal with decisions being made on behalf of a person who lacks the mental capacity to make them for themselves, a Deputyship Order is made when someone has already lost mental capacity and has not made a Power of Attorney. In these cases, the Court of Protection appoints a deputy to make decisions for them.
There Are Two Main Types Of Deputyships:
- A Property and Financial Affairs Deputyship. This type of deputyship covers decisions relating to matters such as managing money, paying bills, and handling property.
- Health and Welfare Deputyship. This type of deputyship covers decisions relating to matters such as care, treatment, and wellbeing.
Health and Welfare Deputyships are not as common as Property and Financial Affairs Deputyships.
Deputyship vs Power Of Attorney: What Are The Key Differences?
As we have explained, deputyships and Powers of Attorney serve a similar purpose, but there are important differences between them. Some of the main differences are as follows:
• When The Arrangement Is Made
Deputyships and Powers of Attorney are made at different times. Powers of Attorney are created before someone loses capacity, whereas deputyships are applied for after someone loses capacity.
• Who Chooses The People To Take Over Control Of The Individual’s Affairs
When someone puts a Powers of Attorney in place, they nominate specified individuals to act as their attorneys. By contrast, the responsibility for choosing deputies lies with the Court of Protection.
• Who Chooses The Scope
When you make a Powers of Attorney, you can limit the scope of the power you grant to your chosen attorneys. You can give them blanket power, or you can detail the specific decisions they can or cannot make. When the Court of Protection makes a deputyship order, the court decides the scope of the order.
• How Long It Takes
Powers of Attorney can usually be prepared and registered within a few weeks. Deputyships usually take longer because the court is involved.
• The Cost
Powers of Attorney are incredibly cost-effective. It tends to cost more to obtain a deputyship order, particularly if the matter is complex or the deputyship application is contested.
Deputyship vs Power Of Attorney: Which Is Better?
In most cases, setting up a Lasting Power of Attorney while you still have capacity is far simpler, quicker, and cheaper than leaving matters to deputyship. You can ensure that control of your affairs is entrusted to people you know and love, and avoid uncertainty for your family.
At Simper Law, we always encourage clients to set up Lasting Powers of Attorney as part of their future planning, regardless of their age or health. While a young, fit person is unlikely to need to rely on their Lasting Powers of Attorney for a long while, putting one in place ensures that they are prepared should the unthinkable happen and they unexpectedly lose capacity, for example, because they are involved in an accident.
If your loved one has already lost capacity and there is no Powers of Attorney in place, our Court of Protection solicitors will guide and support you through the process of making a deputyship application and advise you on your duties as a deputy once the order has been made.
Please call us now on 01603 672222 for a no-obligation conversation today or Click Here To Make An Online Enquiry.
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