Making it clear who you want to look after your affairs if you become incapacitated can save loved ones a lot of heartache, expense and time, as Clare Gorman explains…
What is the difference between a Lasting Power of Attorney and a deputyship order?
I’m sure you’ve heard of a Lasting Power of Attorney (LPA). It allows you to appoint someone to manage your finances and/or health if you are unable to do so.
There are two types of LPA, one to cover paying bills and dealing with property and the other focusing on welfare issues, for example, making decisions about life sustaining treatment.
One of the key requirements of an LPA is that the person making it must have mental capacity when the form is signed, ensuring they understand its implications and effects.
So, what happens if you lose mental capacity and don’t have an LPA in place? In these situations, a deputyship order may be required.
The Court of Protection issues deputyship orders to allow someone to handle the finances of a person lacking capacity, as confirmed by a GP, for example. Crucially, the decision about who to appoint is made by the court and may not be who you would choose.
Whilst is it common for a financial deputy to be selected, it is unlikely they would be given the power to make decisions about your health and welfare. Understandably, the courts are less willing to grant someone this power without knowing more about your wishes. An LPA, on the other hand, is often used to appoint family, friends or others in relation to both matters.
As a deputy is answerable to the court, they are subject to strict supervision. For example, they would need to prepare an annual report listing their expenditure on your behalf. This may offer more protection to the person lacking capacity, but it can be an onerous task. An attorney, however, does not have the same ongoing controls, although they can be investigated if they fail to act in your best interests.
Another advantage of an LPA is that you have the flexibility to authorise your attorney to step in if you are housebound or prevented from managing your affairs by a physical health issue. A deputyship order only applies to mental incapacity.
It is easy to put off planning for a time when you may need the help of loved ones, but preparing an LPA when you are fit and well means it is ready to use straightaway. Generally, obtaining a deputyship order is more expensive, more complicated and more time consuming and given current restrictions, it can take up to a year to be granted. Separate orders may also be required to deal with matters such as selling your property.
Having an LPA in place makes it easier and quicker for your family and friends to assist you in your hour of need.
To find out more about making a Lasting Power of Attorney, why not book a free 30-minute consultation with one of our probate specialists? Telephone (0114) 218 4000, email: info@tayloremmet.co.uk or complete this form.
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