What is the difference between an Attorney and a Deputy?
I wrote about the capacity to make a Lasting Power of Attorney after attending an Open Justice Court of Protection hearing. The focus of the hearing cantered on capacity; however, it also heightened my awareness of deputies and the difference between an attorney and a deputy, something I’ll focus on in this blog.
What is an attorney or a deputy?
An attorney or deputy is someone appointed to act on behalf of a person who lacks capacity to make decisions for themselves. There is a slight exception as an attorney for Property and Finance can, if consented by the donor at the time of making the Lasting Power of Attorney, act when the donor retains capacity).
A person has capacity if they can:
The GOV.UK website provides examples of when a person might lose capacity:
It is worth noting that another cause of loss of capacity could be a sudden illness or accident. I write this because the case I mention at the beginning of this blog the loss of capacity followed an accident.
Attorneys can be appointed in a Lasting Power of Attorney for Health and Welfare and a Lasting Power of Attorney for property and finance and, similarly, a deputy can be appointed to manage property and finance or personal welfare.
Both attorneys and deputies must act within the Mental Capacity Act 2005.
What are the differences between attorneys and deputies?
Capacity
An attorney is chosen whilst you retain capacity, this means you can choose in advance who will act for you if ever needed. A deputy is appointed by the Court of Protection after capacity has been lost.
Choice
Making a Lasting Power of Attorney Lasting Power of Attorney gives you the choice of deciding who would speak for you if you lost capacity. You can have more than one attorney and, ideally, your attorney(s) will be a person or people who know you well and what matters most to you. This is important because, if they ever need to act for you, the decisions they make should be aligned to your wishes, values and beliefs.
As a deputy is appointed by the Court of Protection and may not be the person you would choose to speak for you.
Process
The process of applying for a Lasting Power of Attorney is relatively straight forward. The application can be made on line or by paper by the donor. If there are no errors on the application, one form is completed (for each Lasting Power of Attorney application), sent to the Office of the Public Guardian, registered and the process then complete.
The process for deputyship application is considerably more complex. An application, (known as a COP 1 ), is completed followed by an assessment of capacity (a COP 3), and a deputy’s declaration (a COP 4).
Supporting information in form COP1A is required when applying for property and finance deputyship and, for health and welfare deputyship, a COP1B is required.
Length of time to set up
At the time of writing it is taking around twenty weeks for a Lasting Power of Attorney to be registered. Applications for deputyship will take considerably longer, and will depend also on if a hearing is needed.
Cost
It costs £82.00 for each Lasting Power of Attorney application to be registered with the Office of the Public Guardian however there are remissions and exemptions available. It is possible to complete a Lasting Power of Attorney application independently, or to use to an LPA consultant or a solicitor. Additional costs will depend on which route is used to make a Lasting Power of Attorney .
The costs for a deputyship are considerably more, currently £371, plus £494 if the court decides your case needs a hearing.
As well as the cost in arranging the deputyship there is an ongoing annual cost payable to the Office of the Public Guardian for Property and Finance deputyships; a Lasting Power of Attorney is a on-off registration cost.[i]
[i] Updated 6.6.22 following information kindly supplied by @lizziecalladine
Ongoing supervision
Once a Lasting Power of Attorney is made the law recognises that, as you have chosen to appoint an attorney, this will be a person you trust and who will act in your best interests. Only if there is a concern would an attorney be investigated by the Court of Protection .
In contrast, the ongoing level of supervision for a deputy is very different. A deputy is required to submit an annual report annual report to the Office of the Public Guardian.
Conclusion
Whilst an attorney and a deputy have very similar functions, the application process, costs involved and level of ongoing supervision is very different.
For me, the most critical difference is that of choice, you chose an attorney and a deputy is appointed for you.
As none of us know when we might lose capacity, making a Lasting Power of Attorney can be seen as an important part of normal life planning.