There may come the point in life where you find yourself in a compromised position – one which may require someone else to make life-changing decisions on your behalf. The reasons for this are broad. They may be health-related, such as a diagnosis of dementia. They may also be circumstantial, such as a permanent move out of a certain dominion.
Suppose you decide to give up your decision-making rights. In that case, two major legal proceedings can allow some control over the appointing process. Lasting Powers of Attorney and Court of Protection Deputyship are the legal proceedings and documents that will enable attorneys or deputies to manage a third person’s affairs. Many people have heard of a Lasting Power of Attorney (LPA). The Protection Deputy Order (PDO) is less commonly used. The roles of Attorney and Deputy are mostly similar. Still, they have some key differences which may be relevant to your situation.
There are five crucial differentiating reasons why you may opt for one or the other:
1. Mental capacity at the time of appointment
Appointing an LPA requires that you have the mental capacity at the time you apply. You will need to prove your acknowledgement that you are handing over complete responsibility to your own affairs’ rights. The LPA must be registered with the Office of Public Guardian (OPG) before it can be considered in effect. More information on the Office of Public Guardian can be found here.
The proposed Deputy must always make a PDO application. Often, the person whose affairs will be taken over has indicated who they may want to have in charge of their affairs if something were ever to happen. However, it must be the Deputy who applies to the Court of Protection. You cannot make an application for deputyship before someone has lost their mental capacity.
Therefore, the key difference between an LPA and a PDO is determined by whether the application is made before or after mental capacity has been lost (LPA or PDO, respectively).
2. Control over the appointment
When appointing an LPA, you can choose anyone over 18 years old to act on your behalf. They must be able to prove they have sufficient mental capacity. You can also appoint several attorneys who work together to come to a joint conclusion.
When appointing a deputy through a PDO, the court will decide whether or not the person making the application is suitable. This suitability is assessed in numerous ways, including the degree of relatedness to the individual and independent mental capacity. It is unusual, but possible, for the court to reject a Deputyship application. Suppose no suitable family is willing or able to assume the position of Deputy. In that case, Local Authorities may be appointed by the courts. For the most part, Deputy positions only have power over Property and Financial decisions. Health and Welfare Deputyship is strictly regulated. The regulations exist because it is difficult to assume a court official will know how the individual would have wanted their personal medical decisions to be made.
3. Financial commitment
Lasting power of attorneys’ are generally much less costly than Deputyships. Because a Deputyship can be a lengthier process, solicitor and other legal fees accumulate over a more extended period. Additionally, a single application for LPA costs only £82, whereas the court application fee for a Deputyship alone is £385. LPAs do not require a recurring cost, whereas Deputyships can also cost annual supervision fees of up to £325.
4. Duration of the application process
Understandably, LPAs are a much quicker and more straightforward application process. The process is expedited because the person for whom the decision will be made approves of the individual they are appointing. LPAs can be written, registered, and fully in effect within an eight to twelve-week span. Once registered, attorneys can immediately make decisions if required.
Deputyship appointments are never a quick process. Because the individual has lost mental capacity without an LPA in place, the court application can take anywhere from four to six months. The lack of ability to make decisions can cause a huge problem where finances are concerned. Particularly when medical bills and healthcare-related choices need to be made promptly, the Deputyship appointment delay can be detrimental.
5. Supervision and Guidance
Finally, there are large differences in the amount of supervision placed on attorneys versus deputies. Attorneys are supervised relatively lightly. Because the appointment was made by the individual himself or herself, there is a heightened sense of trust. Deputyships always require more maintenance. Because the selection is made after mental capacity is lost, many more regulations and checks are involved. Deputyships are often under scrutiny because their appointment was made without the individual’s explicit consent.
The Deputy must submit an annual report to the Office of Public Guardian, outlining any expenses and decisions made on the individual’s behalf. The annual fee must be paid with this report submission. None of these fees or reports is required for an LPA.
Action Plan
It is always a good idea to have a lasting power of attorney in place. Regardless of whether you have a concrete reason to believe you may lose mental capacity or need someone to make decisions on your behalf, it can save financial and emotional energy, as well as time. Over 850,000 people in the UK suffer from medical conditions such as dementia or Alzheimer’s. To speak to a lasting power of attorney solicitor about putting an LPA in place, visit Qredible.co.uk.
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