LPA v Deputyship?
Whilst the COVID-19 pandemic has increased the number of people considering their wills, we have not seen an increase in people considering a Lasting Power of Attorney (LPA). Often, people have not heard of LPAs and if no LPA is present, your loved ones may need to apply for a Deputyship order.
What is a Lasting Power of Attorney?
A Lasting Power of Attorney (LPA) is a legal document that enables individuals (known in this process as ‘the donor’) to appoint a person or persons (known as ‘the attorney/s’) to make decisions about their welfare, money or property, either now or in the future should the donor be unable to make decisions themselves. Donors typically are unable to make decisions themselves if they lose mental capacity to do so. However, the LPA can grant the right for the attorneys to act if the donor does not want to make the decision or deal with their affairs themselves for any reason, for example due to physical disabilities. We therefore advise that everybody should consider making LPAs, irrespective of their age or health as an accident or illness could happen to anyone at any time.
There are two different types of LPAs:
- Health and Welfare – this will allow your attorneys to make decisions related to your health and personal welfare, such as your daily routine, your medical treatment and where you are to live.
- Property and Financial Affairs – this document allows your attorneys to manage your bank accounts, pay your bills and sell your property.
What happens if I don’t have an LPA?
LPAs can only be made if the donor has mental capacity at the time of making. If you don’t have an LPA and you lose mental capacity and therefore are unable to make decisions or deal with your affairs then your loved ones will not have the authority to manage your affairs.
If someone needs to manage your affairs then they will need to apply to the Court of Protection for a Deputyship order. There are two types of Deputyship orders similar to LPAs. However, it is rare that a Deputyship order will be made for personal welfare.
There are several key differences between LPAs and Deputyship orders:
| LPA | Deputyship | |
| Who creates the document and when? | The Donor makes a LPA when they still have capacity to do so. | The Court of Protection will grant the order after the Donor has lost mental capacity. |
| Types | Two Types:
· Property and Financial · Health and Welfare |
Two Types:
· Property and Affairs · Personal Welfare – this is rarely granted and the court will assess every application as it is made. |
| Timescale | The LPA can be applied for relatively quickly and there is a wait of around 10-12 weeks to receive the document from the Office of the Public Guardian. | As there are lots of forms and different elements, it can take several weeks to be ready to make an application. It can then take several months to receive the Deputyship order from the Court of Protection depending on their capacity. |
| Cost | · Single set of legal fees per LPA
· £82 registration fee per LPA to the Office of the Public Guardian |
· Single set of legal fees at a higher rate than LPA
· £365 application fee to the Court of Protection per application · Fee to a Practitioner to confirm that capacity has been lost. · Annual supervision fee – this will depend on the value of the assets |
| Who can be my attorney? | Whoever you choose | It is up to the Court of Protection and they may choose a solicitor, who does not know you. Or they may choose a family member you would not have chosen. |
As you will see, you will have much greater control and save time and money if you consider your affairs now and arrange your Lasting Powers of Attorney.
If you would like any further information then please do not hesitate to get in touch with Amy Jones, our private client solicitor, on 01179 731 391 or [email protected].