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10 September 2019

Your choice or someone else’s?

A lasting power of attorney (LPA) enables you to choose the person who would look after your affairs if you were later to have mental capacity problems.

Some individuals choose not to make an LPA; some people never quite get round to it. As a result, if capacity problems arise later, the only option is to apply to the court for a ‘deputy’ to be appointed. The application will involve both cost and delays compared to having an LPA immediately available.

For a Deputyship Order to be made, a medical practitioner will need to assess capacity and complete a court form (the medical practitioner is likely to charge a fee). There are numerous further forms to be completed by the person making the application and a court fee of £385 per application, plus a further £500 if the court decides the case needs a hearing. There are then the ongoing costs and reporting to the court, and additional application fees if the deputy needs permission to do something beyond the initial Order.

Members of the firm often act as court-appointed deputies. They are therefore familiar, first-hand, with the difficulties of managing someone else’s affairs, especially in the knowledge that they have not been appointed by the individual personally.

There are in fact two possible types of Deputyship Orders, just as there are two types of LPA: one in relation to property and financial affairs; the other in relation to health and care. An application for a Deputyship Order for property and financial affairs is likely to be granted by the court, and it will take into account the individual’s likely wishes as to whom the deputy should be, but the court will not comply automatically.

By contrast, health and welfare deputyships are only granted in relatively limited circumstances: the person applying should expect to have to show some special reason why it is needed in that particular case. The number of personal welfare deputies appointed currently averages at about 350 per year compared to around 15,000 for property and affairs. Anyone who assumes or would prefer that, should the need ever arise, a particular person or people would be able to take health and welfare decisions on their behalf should consider very carefully whether they want a health and welfare LPA. Without an LPA or a deputy, all interested parties would, if capacity problems arose, have to try to reach decisions by consensus.

There are however cases where it can be wise to make a positive decision in favour of having a deputy rather than either sort of LPA. An obvious example is where the family dynamic is difficult. A professional court-appointed deputy can ‘hold the ring’ in a way that an attorney might find difficult if, for example, members of the family or others are likely to challenge or dispute decisions. An informed choice in favour of a deputy is one thing; but it can never be wise to end up with a deputy (provided the court will appoint one in the case of health and welfare) simply because the LPA never reached the top of the ‘to do’ list.

If you would like to know more about the options that are available, please see our ‘Your choices’ briefing.

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