Either a Lasting Power of Attorney (LPA) or a Court of Protection Order is implemented to ensure that a person who has lost mental capacity has a responsible representative to act on their behalf. This representative, whether an attorney under an LPA or a deputy under a Court of Protection Order, must make decisions for them with their best interests in mind.
An LPA can only be implemented when the person still has mental capacity. In the unfortunate situation that a person has lost mental capacity, then a deputy can instead be appointed.
As power of attorney lawyers, NSS Legal can offer advice on the options available to you or your loved ones. Our article explains the roles of both an attorney and a deputy and how a deputyship can be applied for when it is too late to apply for an LPA.
What is a Lasting Power of Attorney?
A Lasting Power of Attorney is a legal document that allows you, the donor whilst you are well, to appoint people to make decisions on your behalf, who will be known as your attorneys.
The attorneys will make decisions on behalf of the donor in regards to their health, personal financial affairs or business financial affairs.
For an LPA to be legally accepted, it must comply with the following:
• the donor and attorneys must be 18 or over;
• the donor has ‘full mental capacity’ at the time of the creation;
• all relevant parties to the LPA have signed it in the prescribed form, otherwise the Office of the Public Guardian will reject it at the point of registration.
If the donor has started to deteriorate in their mental capacity, it may no longer be appropriate to apply for a Lasting Power of Attorney.
NSS Legal can guide you through the options are available. If an LPA is no longer suitable, then the most suitable representatives will instead need to apply for a Court of Protection Order which will enable them to act on behalf of the person who has lost capacity.
For more information, please read our article on Lasting Power of Attorney Explained which explains the advantages of getting your affairs in order whilst you are well and having an LPA drawn up.
What is a Court of Protection Order?
This Order is a legal document issued by the Court of Protection and is implemented when a person has lost their mental capacity and can no longer make important decisions regarding their health or financial affairs.
What is a Deputy?
Unlike the LPA, where you as the donor choose who will act as your attorney, under a Court of Protection Order, it is the Court who ultimately decides who will be appointed as your deputy to look after you. The appointed deputy can take on the responsibility of making decisions on your behalf when you are no longer able to do this yourself.
Similar to the LPAs, there are two categories of deputyship orders:
• Property and financial affairs; and
• Personal welfare.
Property and Financial Affairs Deputy
This type of deputy will be in charge of managing your bank accounts, making investment decisions, paying bills on behalf of you as well making decisions when it comes to your property.
Personal Welfare Deputy
For this role, the deputy is responsible for decisions relating to your medical treatment and the conditions of care. The court only appoints a welfare deputy in two main circumstances:
• if the decisions being made are not necessarily considered in the best interests of the unwell person, e.g. due to family disagreements; or
• if decisions are needed over a period of time, such as living arrangements.
Who Can Be a Deputy?
A deputy must be over the age of 18 and can be appointed for someone who is 16 years or older and lacks mental capacity.
A deputy tends to be a family relative or a close friend. However, anyone can apply to the Court of Protection and in some cases, someone from the social services may apply to be appointed as deputy or even a legal professional.
Applying to the Court of Protection
An application must be submitted to the Court of Protection requesting an Order be made to appoint the applicant as the deputy.
As well as completing all the necessary forms, an appropriate practitioner, such as a doctor, will be required to prepare a medical report confirming the person has lost capacity and this must also be sent to the Court of Protection as part of the application.
NSS Legal can advise you through this process and advise you on the duties you will have as a deputy when the application has been finalised.
How Long Does It Take to Apply for Deputy?
The process is much longer than that of an LPA application. It will depend on several factors including:
• whether Court permission is required;
• who is applying and whether there are other interested parties who need to be notified of the application;
• how much information the Court will require before reaching a decision; or
• if anyone contests the application.
It can take around 6-10 months for an Order to be issued.
How Can NSS Legal Help?
NSS Legal can advise you on the suitability of Lasting Powers of Attorney and guide you through the process of setting these up or applying for a Court of Protection Order for a loved one who has already lost capacity.
If you require NSS Legal to prepare and register Lasting Powers of Attorney for your personal affairs or your business, please get in contact with our team on 020 8209 1222, and we can assist you through this. Alternatively, you can email us at firstname.lastname@example.org