What are the main differences between Lasting Power of Attorney and Court Deputyship?

Without a Lasting Power of Attorney, the Court of Protection will appoint a Deputy to make decision on your behalf.  This includes making decisions, for example, where you live, what medical treatment you receive and who controls your assets.

Putting in place a Lasting Power of Attorney will mean that your affairs are managed by whoever you choose to appoint as your Attorney. Without a Lasting Power of Attorney, these decisions could fall to people who you would not necessarily choose, which may increase the chance that decisions are not made in line with your wishes.

We have specialist solicitors, who can assist with issues such as :

  • Advising clients who are considering or have decided to create a Lasting Power of Attorney;
  • Advising Deputies and clients who have been granted Lasting Power of Attorney relating to legal aspects associated with managing the incapacitated person’s affairs;
  • Where a Deputy or Attorney has been appointed and you are a relative concerned about the conduct of the Deputy or Attorney.

What powers does the Court of Protection have?

Under the Mental Capacity Act, the main functions and powers of the Court include:-

  • Ruling about whether an individual has the required mental capacity to make decisions himself or herself;
  • Where a person does not have mental capacity, the Court can make practical rulings about finances, property and care for the incapacitated person;
  • Dealing with disputes relating to Lasting Power of Attorney which can include challenges to the validity of the Power of Attorney appointment, the Attorney’s conduct or an application for the Attorney to be removed.
  • Legal issues relating to the conduct of an appointed Deputy which can include removing the Deputy.
  • Make decisions about a lasting power of attorney or an enduring power of attorney, including whether the power is valid, objections to registration, scope of attorney powers and removal of attorney powers.

What type of decisions can the Court of Protection make?

The Court of Protection can rule on a wide range of issues which include:-

  • Who should be appointed as a Deputy;
  • What powers an appointed Deputy has;
  • Deciding upon whether a Deputy or Attorney has acted properly;
  • Whether to remove a Deputy or Attorney;
  • Deciding whether a Power of Attorney is valid;
  • Whether a Statutory Will should be made for the person lacking mental capacity

Potential legal risks for Deputies

We regularly advise clients who have been appointed Deputies. We are sometimes instructed where relatives seek to interfere or dispute what the Deputy is doing or where the Court questions the Deputy’s activities. It’s important to understand, before you apply to be appointed as a Deputy that :-

  • You will probably have to pay an amount of money, known as a Deputy’s Bond, into the Court of Protection as a security or guarantee bond for any financial losses suffered if you have acted outside of your powers.
  • You are permitted to take professional advice in your capacity as Deputy but you may have to pay the fees yourself and not from the finances of the incapacitated individual.

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