Both Lasting Power of Attorney (LPA) and Deputyship are legal mechanisms in the United Kingdom that allow someone to make decisions on behalf of another person who lacks mental capacity. However, there are several similarities and differences between LPAs and Deputyship. Here's a breakdown:
Similarities:
Authority: Both LPAs and Deputyship grant legal authority to an appointed person to make decisions on behalf of someone who lacks mental capacity.
Mental Capacity: In both cases, the person for whom decisions are being made must lack mental capacity as assessed under the Mental Capacity Act 2005.
Decision-Making Scope: Both LPAs and Deputyship can cover decisions related to property and financial affairs as well as health and welfare matters.
Safeguards: Both LPAs and Deputyship have safeguards in place to ensure that decisions made are in the best interests of the person lacking capacity.
Differences:
Appointment Process: LPAs are created by the person themselves (the donor) while they have mental capacity, by choosing one or more attorneys to act on their behalf. Deputyship, on the other hand, is granted by the Court of Protection, which appoints a deputy to act on behalf of the person lacking capacity.
Legal Formalities: LPAs require the completion of specific forms and registration with the Office of the Public Guardian (OPG). Deputyship involves a more formal and involved application process to the Court of Protection.
Timing: LPAs can be set up in advance, allowing the person to choose an attorney(s) in anticipation of losing mental capacity in the future. Deputyship, however, is typically sought when someone has already lost capacity, and decisions need to be made.
Cost: LPAs generally have lower costs as they can be created and registered without involving the court. Deputyship involves court fees, supervision fees, and ongoing reporting requirements, which can be more expensive.
Flexibility: LPAs offer more flexibility as the donor can outline their preferences, instructions, and limitations for their attorneys to follow. Deputyship involves the court making decisions on behalf of the person lacking capacity, and the deputy must seek court approval for certain actions.
Accountability: LPAs have less direct oversight, and attorneys are generally trusted to act in the donor's best interests. In Deputyship, the deputy is required to submit annual reports and accounts to the OPG, providing a higher level of transparency and accountability.
It is important to seek legal advice to determine which option, LPA or Deputyship, is most suitable for an individual's specific circumstances and needs. If you are considering becoming a deputy or making an LPA in the United Kingdom, it is advisable to seek legal advice and guidance.
Qualia Law CIC is a non-profit social enterprise providing free legal advice in the areas of mental capacity, financial safeguarding, lasting power of attorney (LPA) and Court of Protection. In addition, Qualia Law CIC provides not-for-profit professional Deputyship or Attorneyship by expert solicitors, which may be necessary for individuals who may not have relatives willing and able to take on the role of Deputy or Attorney.
For free advice, or to make a referral, please visit www.qualia-law.org/contact
