Author: Sophie Vines
I am frequently dealing with queries from clients about what the difference is in being an ‘attorney’ or a ‘deputy’ on behalf of a family member who lacks capacity to make their own decisions. The answer is yes, there is a difference, and importantly some quite crucial differences that people should be aware of.
Attorney versus Deputy
For those that don’t know, a Lasting Power of Attorney (LPA) is a way of giving someone you trust and rely on the legal authority to make decisions on your behalf if you lack mental capacity at some point in the future, or no longer wish to make decisions for yourself.
You can only appoint an Attorney/s under an LPA if you have the mental capacity to understand the decisions you are making at that time.
The process for assessing whether a person has the capacity is taken from the Mental Capacity Act 2005 and its code of practice. It is a complex document, but in summary, you need to be able to understand relevant information, retain that information , weigh it up and then communicate your decision to the certificate provider or Attorney.
In contrast, a Deputy is appointed by the Court of Protection to manage the property and finance and/or personal welfare of someone who lacks the capacity to make those decisions for themselves and whom it was too late to appoint an Attorney for. For instance a person who is showing signs of Dementia or Alzheimer’s.
The level of ongoing supervision once a Deputy has been appointed is quite different to that of an Attorney under an LPA.
A Deputy is required to complete an annual report to the Office of the Public Guardian (OPG), and must during this period, account for all expenses made on behalf of the person who has lost capacity. They must also pay an annual fee to the OPG towards the cost of the supervision.
On the flip side, an Attorney appointed under an LPA is not required to report to the OPG on a regular basis and their annual expenditure is essentially unsupervised due to them being previously being chosen as the trusted person.
Deputies can also be visited from time to time by a representative of the Court of Protection to ensure the Deputyship is working and that the Deputy is making decisions which are in the best interests of the person who lacks capacity. However, Attorneys do not have the same level of supervision and scrutiny.
Additionally, a Deputy is required to arrange and maintain an annual security bond which is essentially a type of insurance to cover any financial losses caused by the Deputy, either deliberately or unintentionally. This is not a requirement for Attorneys.
Implications for Deputies
Over the past few weeks I have been contacted by Deputies seeking advice on their reporting responsibilities and also from those Deputies who need support in completing the lengthy annual OPG report which has been causing them a great deal of stress.
This signals the shift in recent months towards an even greater level of scrutiny which many Deputy’s, who already have busy lives, are finding onerous, and completing the Deputy Report form is just one of these.
Attorney or Deputy?
After having experience in dealing with both Deputies and Attorneys, I without doubt would always recommend to clients that setting up a Lasting Power of Attorney whilst you are able to, is the best way to avoid the need for a family member or close friend to have to take on the Deputyship role at a later date. An LPA is cheaper, less stressful, less time consuming and more reliable.
Please do not hesitate to get in touch if you would like to discuss any aspect of the process involved in appointing an Attorney under an LPA or a Deputy via the Court of Protection.
For more information on how we can help, call: 01472 694569 or email email@example.com.