The process of deputyship and why it is important to make a LPA to avoid having to go to Court of Protection

A Lasting Power of Attorney (LPA) is a legal document that lets you appoint one or more people (known as ‘attorneys’) to help you make decisions or to make decisions on your behalf.

A person cannot create a LPA if they lack mental capacity. In these situations, a family member, friend or the closest relevant person, can apply to become someone’s Deputy (similar to attorney). A Deputy would then be authorised by the Court of Protection to make decisions on the person’s behalf.

The Pitfalls of Deputyship

The process of making an application to be appointed as person’s Deputy is somewhat time consuming. It involves submitting a detailed application to the Court of Protection which includes a mental capacity assessment report of the person lacking capacity.

It can take in the region of 4 to 6 months to obtain the Court Order, provided that it is granted, as opposed to 3 months to have a LPA registered. There have been cases where the Court will not agree to appoint the applicant as the Deputy because of a conflict of interest or safeguarding issues.

Furthermore, Deputies must act within the powers afforded to them by the Court of Protection. Most Order’s typically include the power to manage a person’s money, pay bills or make reasonable gifts (that the person would have made), and make investments, if appropriate.  However, you may need to make further applications to the Court for further powers, such as asking the Court’s permission to sell the person’s home. A LPA would, however, provide these powers.

The costs associated with a Deputyship Application and ongoing Deputyship Order are somewhat greater than if the person had made a LPA whilst they had mental capacity.

For a Deputyship application a person will have to incur amongst other things, Solicitors costs, GP costs for completing a mental capacity assessment, Court Application fees for each application they make to the Court, the costs of an insurance bond (which must be purchased to cover the person’s assets should the Deputy act fraudulently) and this is just to name a few.  

Consideration

In summary, all of us, at some point in our lives should prepare a LPA. Therefore, should the unfortunate happen and we lose our mental capacity, we have the safety in  knowing that we have already legally  appointed the people we want to be our attorneys instead of leaving them to face the complications of a Deputyship Application and ongoing dialogues with the Court of Protection.  

This article was written by Peter Taylor who is a Solicitor in our Private Client department.