Should I appoint a Deputy or an Attorney?
Lasting Powers of Attorney (LPAs) and Deputyship Orders are legal mechanisms by which the appointed person can make decisions on behalf of a person who lacks mental capacity. The types of decisions include dealing with their property and affairs or health and welfare.
LPA’s can only be made by a person before they lose mental capacity. The individual, known formally as the donor, makes a fully informed choice about whom they want to appoint to act on their behalf if they lose their mental capacity at some point in the future.
It is a useful preparatory step to take and allows an individual greater control to decide whether they would like a relative/friend to act as their attorney or whether a professional should be appointed to act instead. The individual is also able to set out exactly which decisions they would like their chosen attorney(s) to make on their behalf and they can set out certain restrictions on their decision-making powers.
A Deputy is appointed following an application to the Court, made by a third party on behalf of an individual, after they have lost (or are suspected to have lost) their mental capacity. A Deputy will be required where no other provision has been made to deal with an incapacitated persons affairs.
The application is made to the Court of Protection and is often presented to the Court by a third party such as a family member, friend, social services or a professional advisor such as a solicitor. The application process is a formal one and requires the person making the application to file evidence on capacity. It is important to ensure that the evidence is presented in accordance with the Mental Capacity Act 2005 and that the applicant is a suitable candidate for Deputy.