Ben Hoare Bell Partner Andrea Sellers explains the difference between a Lasting Power of Attorney (also known as an LPA) and a Deputy Order
Lasting Powers of Attorney and Deputy Orders are each methods of appointing of a person or persons to deal with the affairs of a person who lacks mental capacity. They can each be made in relation to financial affairs and/or in relation health and welfare issues. However there are important differences between the two, particularly in how they are set up.
An LPA can only be made by a person before they lose mental capacity. The person making the LPA chooses who they want to act as their Attorney(s) and chooses what powers they wish to give to the Attorney(s). Hence, once someone has lost the mental capacity to make an LPA a third party such as a family member cannot obtain one on their behalf.
If someone has already lost capacity and if they had not previously made an LPA then if it is necessary for someone to deal with their property and finances an application would need to be made to the Court of Protection. Such applications can be made by a relative, a friend or a professional such as the local authority or a solicitor. It is then the Court which decides who should be appointed to run your affairs, and so you have no control over that decision. An application to the Court of Protection can also be expensive.
Making a lasting power of attorney (LPA) allows you to make that choice, giving you the security of knowing that if a time ever comes when you are unable to make important decisions yourself someone you trust can decide what is best for you.
The advantages of having an LPA therefore are:
- You choose your attorney(s) rather than having the Court make that decision for you.
- You can give your attorney’s guidance or place restrictions on how you wish them to act in dealing with your affairs
- It is cheaper and quicker to register an LPA than to have someone make an application to be appointed as your deputy after you have lost capacity.
- You can make your property and financial affairs LPA effective immediately if you wish, and therefore if your physical health is such that you would prefer a third party such a family member to deal with your affairs you can to give them the authority to do so.
You can obtain the forms needed to make an LPA or to apply for a Deputy Order from www.gov.uk or you can contact a solicitor.