Both Lasting Powers of Attorney and Deputyship Orders grant legal authority to act and make decisions on behalf of a person lacking mental capacity.
However, there are a number of significant distinctions between the two. In essence, LPAs are future arrangements taken prior to a loss of capacity. Deputyship Orders, on the other hand, may be viewed as something of a last resort, issued when a decision must be made for someone else but no legal power has been granted.
In this article, LPA and deputyship – what’s the difference between a lasting power of attorney and a court of protection deputyship, we take a look at these issues in more depth.
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What is the Court of Protection?
The Court of Protection is a court that handles decisions and actions performed in accordance with the Mental Capacity Act. If someone needs the Court’s permission to make decisions regarding your health, welfare, finances, or property, you or someone assisting you would need to petition to the Court.
The Court can make decisions about:
- Whether an action to be taken on your behalf is suitable when you lack the capacity to take it yourself — the court can assess whether they believe you have the mental capacity to make a particular decision or whether something is in your best interests.
- Disputes that cannot be resolved in any other manner, such as by hiring an independent advocate for mental competence.
- Situations in which multiple decisions, rather than a single one, must be made on your behalf.
- Disputes over an authorization for the deprivation of liberty safeguards or their usage.
- Removing an attorney or deputy under a lasting power of attorney.
- Your healthcare or personal care, in the absence of an attorney or deputy.
- Whether an advance decision or Lasting Power of Attorney is lawful, or if there is debate regarding its meaning.
- Whether a deprivation of liberty safeguards authorization was legitimately issued or resolving a disagreement on the use of safeguards against you.
When making decisions on your behalf, the Court must always act in your best interest.
What is a Court of Protection Deputyship
There are two types of Deputy Orders that can be issued by the Court of Protection:
- Property and Financial Affairs Deputyship Orders: These authorise someone to manage or take charge of an incapacitated person’s financial affairs, ranging from mundane matters such as paying the vulnerable person’s bills and managing their pension to more complex matters such as buying, selling, and adapting properties; investing large sums of money; and regularly reviewing the health of portfolios and arranging care packages.
- Personal Welfare Deputyship Orders: These orders authorise a person to make important health and welfare choices, ranging from discussing treatment with doctors and deciding whether to continue life-sustaining care to deciding where the incapacitated person should live.
In general, the Court of Protection handles financial and property cases differently than health and welfare problems. If a person lacks the mental capacity to manage his or her financial affairs, the court will normally grant applications to appoint a Deputy to make decisions that the incapacitated person is unable to make.
Nevertheless, the Court of Protection is far more cautious about appointing a Personal Welfare Deputy. When a person lacks the capacity to make their own welfare decisions, and there is a dispute between family, friends, and public bodies such as the Local Authorities or NHS Trust over what is best for them, the Court of Protection will typically issue a one-time Order addressing the specific issues at hand.
Allowing decision-making by just one person on a particular problem is a serious order with far-reaching repercussions. Instead of appointing a Deputy to make decisions, the law prefers that the Court of Protection make singular judgements on specific cases. In the majority of property matters, there will be a succession of ongoing decisions.
What is a Lasting power of attorney (LPA)?
A lasting power of attorney (LPA) is a legal document that empowers someone you trust, your attorney, to make decisions on your behalf if you ever lose mental capacity or no longer wish to make decisions for yourself. An LPA safeguards your financial affairs, as well as your health and care. It becomes effective if you lose mental capacity or no longer desire to make your own choices. If you wish to ensure you are protected in the future, you would establish an LPA.
LPAs are classified into two types:
- LPA used to make financial decisions
- LPA for the purpose of making health and care decisions.
LPA used to make financial decisions
A financial LPA can be used while you retain mental capacity or you can specify that it should take effect only if you lose capacity.
An LPA for financial decisions may include the following:
- purchasing and selling real estate
- mortgage repayment
- investing capital
- settling accounts
- arranging for property repairs.
You can restrict your attorney’s decision-making authority or empower them to make all decisions on your behalf.
If you’re establishing an LPA to handle financial decisions, your attorney must maintain accounts and keep their funds separate from yours. You can request regular updates on how much money is spent and how much money is available. If you lose mental capacity, these details can be communicated to your solicitor or a family member. This adds an additional layer of defence.
LPA used for health and care decisions
This covers health and care decisions and is only applicable once mental capacity has been lost. In general, an attorney can make decisions about the following:
- where you ought to reside
- your medical treatment
- what you should eat
- who you should contact
- which social activities you should participate in.
Additionally, you can give your attorney special permission to make life-saving treatment decisions.
In summary, what’s the difference between a deputyship order and an LPA?
A Lasting Power of Attorney is created by a person with mental capacity in preparation for a time when they may require assistance making decisions regarding their money or health care. You choose your representative and appoint them using a Power of Attorney.
They are most frequently employed to:
- Access bank accounts
- Sell a property
- Establish savings accounts or investments
- Deal with utility companies and insurances
- Decide on a person’s treatment and living situation
- Your appointed representative is known as your Attorney, while you are known as the Donor.
In contrast, a Court of Protection deputyship order is an order issued by a judge when a person lacks the mental capacity to choose their own agent through a Power of Attorney, but it has been determined that they require assistance. A judge will appoint a person with the authority to make choices on finances or specific medical care and treatment. A court-appointed individual is known as a Deputy
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