When it comes to managing other people’s affairs, there are effectively two ways to gain authority. To the lay person the distinction is not always apparent, however there are significant differences in the time and cost involved in one route over the other, as well as the reason why a particular route may be needed.
Who is an Attorney?
An attorney is person appointed under a Power of Attorney to manage someone’s financial affairs or to make decisions regarding their health and welfare. Powers of Attorney are usually in the form of Lasting Powers of Attorney or their predecessor, Enduring Powers of Attorney. It is no longer possible to create new Enduring Powers of Attorney, however one that was created under the old regime remains valid.
Powers of Attorney are distinct in a number of ways: firstly, they are put in place by the person who’s affairs would be managed (the Donor). This means that the Donor will have chosen who they want to act on their behalf. There are no limitations on who can be appointed as an attorney, although it should always be someone that the Donor trusts completely. Powers of Attorney must be created by someone while they have capacity and understand the authority they are giving to their attorneys.
Lasting Powers of Attorney and Enduring Powers of Attorney are the most common types of powers of attorney because their authority continues even if the Donor later loses capacity. This is not the case for other types of attorneyships. Attorneys can act, in relation to financial decisions, while the Donor retains mental capacity. This allows an attorney to assist with financial matters where the Donor may be physically incapacitated or out of the country, for example. Decisions relating to health cannot be taken by an attorney where the Donor still has capacity.
There are no regular checks on attorneys. Instead, an attorney can be reported to the Office of the Public Guardian if there are concerns that they may not be acting in the Donor’s best interest. While the donor has capacity, they can revoke the power of attorney at any time.
Who is a Deputy?
Deputies are appointed by the Court of Protection to manage the affairs of someone who lacks capacity to make decisions themselves. The first step in any Court of Protection application is to show that the person (known as P) does not have capacity. A person who wishes to be appointed as deputy can put themselves forward and apply to the Court to be granted authority to manage P’s affairs.
Deputies are subject to scrutiny by the Court. This includes producing accounts to show of how P’s funds have been spent, maintaining insurance to cover any potential mismanagement and applying to the Court for further authority, if the original court order only provided limited authority to manage P’s affairs (as is often the case).
It is also worth noting that deputies need to have a good financial background and should not have criminal convictions. If there is no such person known to P, then the Court can ask a member of its professional panel (usually solicitors or mental health specialists) to apply to be appointed P’s deputy. As a result, the deputy can be someone with no personal link to P.
The Court has the authority to remove a deputy if it believes that they have not acted in P’s best interest.
Other points to consider
Whenever possible, we always advise clients to put in place Lasting Powers of Attorney. Just because some is suffering from dementia or a learning disability does not mean that they are automatically excluded from being able to create a Lasting Power of Attorney. They should however have their capacity assessed by a professional to confirm their understanding, and to protect the attorney if their capacity later deteriorates.
Lasting Powers of Attorney are relatively straightforward documents and the forms are freely available from the Office of the Public Guardian. It is therefore worth familiarising yourself with them. Professionals (myself included) can prepare these for you at a charge. The charge relates to the time taken to complete the documents, as there will always be a certain amount of to-and-fro to take instructions and to arrange for the documents to be signed. We will usually act as the certificate provider, who confirms the Donor’s capacity, and we can also advise on more complex elements such as granting authority to manage a business.
Applications to the Court of Protection are complex and time consuming. It is not recommended that lay-people make these applications themselves, due to the complexity and the possibility of missing vital time limits.
If you would like to discuss either type of application then please do not hesitate to contact Ashley Minott on 01494 893518.