Lasting Powers of Attorney and Deputyships - What is the difference?
- AuthorSian Blackman
Many people have heard of Lasting Powers of Attorney (LPA's) and Deputyship Orders but are unsure of the difference between the two. Put simply LPA's are made when you still have the mental capacity to make decisions for yourself and manage your affairs. They are ready to use as soon as they have been registered if you wish, or they can be used when capacity is lost. Deputyship Orders are applied for by another party once you no longer have mental capacity. This will require someone applying to the Court of Protection on your behalf to deal with your affairs.
There are two types of LPA's and Deputyships, one for property and financial affairs and another for health and welfare. Applications can be made for one, or both types (but they are separate applications). If someone is appointed under an LPA they are known as attorneys. If they are appointed under a Deputyship Order, they are known as deputies.
When making an LPA with Chattertons, anyone over the age of 18 with mental capacity can be chosen to manage your affairs, such as a spouse, family member, friend, or Solicitors. More than one person can be appointed as an attorney, and attorneys can be appointed in reserve should your attorney/s be unable to act. Attorneys can act jointly and severally which means they can make decisions on their own or together. If one attorney makes a decision, it will be as if they had all made the same decision. This is particularly useful should one of the attorneys pass away. They can act jointly which means they must be unanimous for every decision. And attorneys can act jointly for some decisions and jointly and severally for others. If this option is selected, a list of all the decisions they can make must be provided.
For deputyships, anyone can make an application (provided they have not been bankrupt or have a criminal record). The courts usually appoint a family member or friend but this may not be who you would have chosen. It is therefore preferable that the family member or friend making the application is known to the person who has lost capacity. Furthermore, if only one deputy is in control of your affairs, they are able to make decisions solely. It is therefore advisable that more than one person applies, and they act jointly and severally.
Another difference between the two documents is the cost. Court fees to register LPA's are currently £82 per application, £164 for both property & financial affairs and health & welfare. Chattertons will also charge for drafting the documents and submitting the application. We recommend using Chattertons to submit LPA's to avoid any costly and timely mistakes, please see our previous blog 'Do I really need an LPA and can I do it myself?' for more information on DIY LPA's.
Deputyship orders are considerably more expensive. The current fee to apply for a deputyship order is £365 per application (for both property and healthcare applications it would be £730 in total). If the court decides a hearing is required, a further £485 is to be paid. Where there is a jointly owned property which needs to be sold, again this is another application and therefore another fee of £365. These fees are in addition to Chatterton's legal costs, which will be higher than LPA applications due to the complexity of the application. For each application the fee is £950 plus VAT and if an Order is required to sell the property then a further fixed fee of £500 plus VAT is charged. A fee for a doctor's report is also required in order to confirm that mental capacity has been lost. The charge for this is usually between £150 - £350. On top of these initial costs, there is a statutory fee payable to the Office of the Public Guardian of £100 as well as an annual general supervision fee of £320 per year, and an annual report which is to be completed by the deputy. Some fees can be reduced depending on the income and assets of the person who lacks capacity.
The timescale for Deputy Orders compared to LPAs is considerably more, some deputyship orders can take up to a year to be processed, compared to LPA's, which pre-COVID took 2-4 weeks to be registered, we are now working at a return time of 4-6 weeks.
Chattertons are members of Dementia Friends which is an Alzheimer's Society Initiative to change the way people think and act about dementia. As members, we cater to those who are living with the condition at each of our offices. It is important to note that although a person may be diagnosed with dementia it does not necessarily mean they have lost capacity. This will be assessed on a case-by-case basis and details of which will be discussed during a consultation with a member of the private client team.
Although we recommend applying for an LPA we understand that in some instances it is not possible. Chattertons offer both LPA and Deputyship order applications. We can also act as deputies and attorneys for financial affairs should you require.
If you are concerned about how your affairs will be managed should you lose capacity, or if a member of your family has lost capacity and you are unsure of your options, please contact a member of our private client team for more information.