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The difference between a Lasting Power of Attorney and Deputyship
No-one knows what the future holds, which is why it is vital that you make plans while you can. Having a Lasting Power of Attorney (LPA) is one of the most important legal documents you can write to make these plans and without one your loved ones would need to go down the long and costly route of applying to be your Deputy. Caroline Johnstone, Associate Solicitor in our Private Client department, explains here how an LPA can help you to protect your future, and what could happen if you don’t have one in place.
What is a Lasting Power of Attorney?
An LPA is a valuable, legal document which sets out who should manage your affairs if you lose capacity to do so yourself, for example if you develop dementia. There are two varieties of LPA; a health and care decisions LPA, which outlines arrangements for where you may live, your day to day care and medical treatment for example; and a financial decisions LPA, which would include decisions regarding your investments, withdrawals of cash or sales or property.
“Having an LPA in place is the ideal solution if you are no longer able to manage your affairs yourself, as you will have chosen a person you trust to do this for you,” begins Caroline. “You can rest assured that they will have your best interests at heart when making decisions, but as you can discuss this decision with them beforehand, they will be prepared for any eventuality and can confirm your wishes.”
What is a Deputyship Order?
In the situation that you do lose capacity and there is no LPA in place, a Deputy would be appointed by the Court of Protection.
“This is a costly and timely application process, and one can that easily be avoided by having an LPA in place,” continues Caroline. “Anyone over the age of 18 can apply to be your Deputy and the decision will be made by the Court of Protection. You will therefore have no input as to who manages your life, you will not have had the opportunity to discuss your wishes with them, and they may not be a person who you would have chosen.
What would my Deputy be responsible for?
If a Deputy is appointed to you to manage your welfare or financial matters then they will have many responsibilities and will be supervised by the Office for Public Guardian. It may be that they choose to be appointed with another Deputy either jointly or jointly and severally. If they are joint Deputies, then all Deputies would need to agree on a particular decision, whereas under a jointly and severally arrangement, they can decide which decisions would need unanimous agreement.
There are several actions that your Deputies cannot take including, but not limited to:
- Writing a new Will or updating an existing Will
- Exercising your powers as a Trustee
- Refusing medical treatment that may keep you alive
- Deciding who you will still communicate with
- Make gifts to a third party
“We know the importance of having the right documents in place. Being appointed as a Deputy when they have not been able to discuss your needs and wishes is a heavy duty to bear, with legal responsibilities towards your care, as well as the practical arrangements and paperwork that must be managed. There is no better way to plan for the future than to have an LPA in place.”
To book your appointment today to discuss making an LPA, or to find out more about how we can support you in your Deputyship duties, contact Caroline Johnstone on 01329 222075 or email carolinejohnstone@warnergoodman.co.uk. Alternatively, you may find the following resources useful:
ENDS
This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice. All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.