Attorneyship and Deputyship: What is the difference?
Attorneys and deputies both have the ability to make decisions for other people, but what are the key differences between the two roles, and how do they work?
Nikki Bedford looks at the answers.
Attorneyship
Lasting Powers of Attorney (LPAs) replaced Enduring Powers of Attorney in October 2007. There is one for property and financial decisions and one for health and welfare decisions. They are legal documents and can be likened to personal insurance policies; the donor (the person making the documents) appoints an attorney(s) to make decisions for them in the event that they lose their mental capacity (ability to make decisions for themselves) through accident or illness.
The documents can only be made whilst the donor has mental capacity and they must be signed off by a certificate provider who confirms not only that they understand the nature and scope of the LPAs, but that they haven’t been unduly pressured and there is no fraud. The certificate provider can be a GP, solicitor or someone outside of the family who has known the donor for more than 2 years.
Once the documents are completed, they are sent to the Office of the Public Guardian (OPG) for registration along with a registration fee of £82 per document. Registration can take up to 12 weeks (providing there are no mistakes in the documents).
On registration, the attorneys would have authority to access the donor’s bank accounts, pay bills and even sell property to pay for care fees if required. They would also be able to decide who the donor sees, what care and support they receive, where they live and if specific authority has been given in the LPA, they can also refuse or consent to life sustaining treatment.
When can an LPA be used?
The property and financial LPA can be used on registration whilst the donor has capacity providing they give their consent, and also when the donor lacks capacity. The health and welfare LPA can only be used in the event that the donor lacks capacity.
Capacity is time and decision specific and the attorneys must have regard to the Mental Capacity Act 2005, particularly the five main principles:
- Presumption of capacity unless proven otherwise
- Take all practical steps to help and support those you act as attorney for to make their own decisions
- Do not treat them as unable to make a decision because their decision seems unwise
- Make decisions in their best interests (refer to the checklist in section 4 Mental Capacity Act 2005)
- Choose the least restrictive option
Donors should take care when choosing their attorneys. They should be trustworthy and have the appropriate skills to make decisions on their behalf. They should be:
- Over 18
- Not an undischarged bankrupt
- People who they have a settled and easy relationship with
Acting as an Attorney
If the donor appoints more than one attorney, then he can choose to appoint them to always act together (jointly) or together and independently (jointly and severally). The donor can also choose to appoint one attorney but have a replacement attorney just as a backup in case the first attorney is unable or unwilling to act when the time comes.
The donor can place restrictions in his LPA setting out occasions when the attorney(s) should and shouldn’t act for them. These restrictions are legally binding and could cause attorneys difficulties with decision making so careful consideration should be given with this. The donor can also provide guidance for decision making i.e. how they would like their investments managed and their preferred care homes. The attorneys are not obligated to follow these wishes but it may prove helpful when they make best interest decisions as they will have some regard to the donor’s wishes and feelings.
When making their LPA donors can choose to notify people when it is registered. This is not compulsory and it’s just a safeguarding measure to enable people to raise concerns/objections on the donor’s behalf.
Attorneys should keep their own money separate from that of the donor. They should ensure clear audit trails and keep a record of any significant decisions made on the donor’s behalf. They should also keep a record of how they have spent the donor’s money. It would also be wise for them to keep receipts and invoices as evidence of any spending. The OPG can take action when concerns are raised about attorney conduct and they are there to supervise and ensure there is no abuse against registered LPAs.
Actions you can take as an attorney
| Property and Finance LPA | Health and Welfare LPA |
| Buy or sell property | Where the donor should live |
| Open, close or operate bank account | Day to day care, diet and dress |
| Claiming benefits, pensions, allowances etc | Who has contact with the donor |
| Receive income and deal payment of bills and tax affairs | Consent or refusing to life sustaining treatment |
| Make gifts to people related or connected to the donor on birthdays, weddings, civil ceremonies and anniversaries. The gifts must be reasonable and affordable. | Assessments for the provision of community care services |
On a final note, the donor can cancel/revoke his LPAs at any time.
Deputyship
When someone lacks mental capacity and they can’t make an LPA, then the only recourse is an application to the Court of Protection (‘COP’) to become someone’s Deputy. These kind of clients are often known as “P”, to protect their identity.
People may lack mental capacity because of a serious brain injury or illness, dementia, or severe learning disabilities. The test for mental capacity is a two-stage test:
- Is there a disturbance or impairment in the functioning of a person’s mind or brain;
- Does that prevent the person from understanding, retaining, weighing up and communicating their decision?
As with attorneys, there are two types of Deputy; one for property and financial affairs and one for personal welfare.
Deputyship Costs
The Court will often only appoint a welfare deputy if there is doubt that decisions will be made in the person’s best interests – perhaps because the family disagree about care, or if someone needs to be appointed to make decisions over time i.e. where someone will live.
The property and financial affairs deputy application consists of:
- COP1 – Application form
- COP1A – Apply to make decisions on someone’s behalf (property and finances)
- COP3 – Assessment of capacity
- COP4 – Deputy’s declaration
- Court fee of £365
The welfare deputy application consists of:
- COP1 – Application form
- COP1B – Apply to make decisions on someone’s behalf (personal welfare)
- COP3 – Assessment of capacity
- COP4 – Deputy’s declaration
- Court fee of £365
Deputies must be over 18 and are usually relatives or friends. They can also be professionals such as solicitors, who must have regard the professional deputyship standards (SD5) available online from the OPG. It is up to the Court to appoint a deputy and they can appoint 2 or more on a joint or joint and several basis. This is similar to the appointment of attorneys in LPAs.
Once the deputyship application has been made, the Court will issue and stamp the COP1 application form and the person making the application will need to notify the person whom the application is about and also those listed in the application itself as people to notify. People to notify are usually relatives and they can respond and object to the application. The person making the application will then need to evidence to the Court that they have served these notices by sending in further forms called COP20A and COP20B.
How long does it take to get a deputyship order?
Currently deputyship orders are taking approximately 6 months+ because the Court is experiencing a backlog of applications. On receipt of the Order the Deputy must carefully review the authority granted to them under the Order and deal with any directions.
One of the directions will be to set up a security bond. This is a type of insurance which protects the finances of P in the event of the Deputy’s misconduct.
Deputies will need to pay an annual supervision fee to the OPG. This figure differs depending on the size of P’s estate. They will also need to pay a one off £100 assessment fee if they are a new deputy. These payments are made from P’s estate.
Deputies should record all decision making and transactions and they should keep their funds separate from that of P. As with attorneys under an LPA, they are also supervised by OPG who can send a visitor at any time to ensure deputies understand their role and duties.
As with attorneys, deputies must understand that capacity is time and decision specific and have regard to the Mental Capacity Act 2005 and in particular the five main principles set out above.
When deputies check their authority in the deputyship Order, they will often see that they will need to return to court to buy and sell property for P. This authority is not a given as it is with LPAs unless, as part of the deputyship application, they have also specifically asked for authority to buy and sell property.
In terms of gifting, deputies have to follow the same guidance as attorneys under an LPA. They can only make customary gifts to relatives or close friends (such as birthdays and weddings) provided this was how P acted before they lost capacity and more importantly, providing it is affordable and reasonable in terms of P’s estate.
Deputies must complete a deputy report each year detailing what decisions they have made, whether they consulted P and who else they spoke to. They must justify why those decisions were in P’s best interests and account for the finances of P.
The role of a deputy is more onerous that that of an attorney as they have an annual reporting requirement and supervision fees etc but in essence, their roles are similar. Their duty and responsibility to P or the donor is paramount and they must always have regard to best interests.
