The loss of mental capacity can be a difficult time for the sufferer and their loved ones. It prompts questions about who’s responsible for looking after their personal affairs and financial matters, which can be a difficult topic to broach.

These questions can be overwhelming, but thankfully, there are legal frameworks designed to protect your well-being in such circumstances. 

Deputyship and lasting power of attorney (LPA) help you plan for the future. While they both come with their own set of legal applications and limitations, they’re important frameworks that can help your family navigate a stressful time.

But, how do you know what works best for your specific situation? That’s exactly what we’re here to help with. 

In this article, we’ll explore the key differences between a Deputyship and an LPA to help you make the right decision for you.

Defining Deputyship and LPA

Deputyship is often referred to as a responsive document because it comes as a response to your mental capacity. It’s usually the first line of action your family could consider if you haven’t set an LPA in place. 

Often considered a costly and lengthy process, it begins with the appointment of a Deputy. The court of protection (COP) will appoint a loved one as a Deputy to manage your affairs after being sufficiently satisfied they meet all legal requirements.

An LPA, on the other hand, is a dynamic document. You get to choose and appoint who handles your affairs in the event of you losing your mental capacity. You can create different LPAs for your finances, property, and health

An LPA also lends flexibility and is favourably viewed compared to an enduring Power of Attorney which have not been granted since 2007 and, although still legally valid, are no longer registered to the courts like Lasting Power of Attorney. An LPA’s validity comes into effect once registered with the Office of the Public Guardian.

Deputyship and LPAs can both serve the purpose of securing your interests in case you encounter an illness or an accident that impairs your mental capacity. However, both will apply in vastly different circumstances. 

Circumstances Leading to a Deputyship vs LPA

You can view Deputyship and LPA as two legal frameworks that deal with the ‘before’ and ‘after’ a certified diagnosis of mental incapacity. 

Deputyships are an option when there are no LPAs in place. In this instance, the court of protection takes on the responsibility of appointing an individual to manage your personal and financial affairs. Your loved ones or family can also apply for Deputyship by filling out an application. 

Essentially, Deputyship does the same thing an LPA would do had it been set before you lost your mental capacity. LPA’s are proactive arrangements, granting you greater autonomy in planning your future.

LPAs can be made by you if you’re anticipating mental incapacity on account of illness (chronic or temporary) or natural ageing health issues like dementia or Alzheimer’s. Accidents resulting in serious brain injuries or people with learning disabilities will also fall into the scope of an LPA.

LPAs can also be made by people of all age groups and aren’t restricted to older people. 

Decision-Making Power and Scope

In Deputyships, the court of protection will appoint one Deputy to handle your affairs if you lose mental capacity. In rare instances and where it deems fit, the court of protection may appoint two Deputies, one each to handle personal health-related matters and finance and property matters.

LPAs also follow a similar procedure, but instead of a court of protection deciding who gets to be a Deputy, you get to choose your attorney. 

While the court of protection will outline the scope, provisions and restrictions as per its guidelines for Deputyship, in an LPA, you, the donor, get to determine the attorney’s scope of authority. 

serious-mature-lawyers-working-together-in-modern-office

The Process of Setting Up Deputyship vs an LPA

You can apply to become your loved one’s Deputy. You’ll have to fill out 4 forms: an application form, an assessment of capacity form, a Deputy’s declaration, and a supporting information form. These must be filled out and sent with an application fee to the court of protection.

In an LPA, you get to choose your attorneys, which makes an LPA a suitable option for those who want greater freedom in making those choices. You’ll have to notify your chosen attorneys and fill out the relevant forms concerning their appointment. Once you have their agreement, you have to register your LPA with the Office of the Public Guardian (OPG). 

A Deputyship is a long-drawn legal process, sometimes taking 4-6 months to complete all legal formalities. It can be more costly than setting up an LPA. An error-free LPA registration could take anywhere between 8 and 10 weeks.

Ongoing Responsibilities of a Deputy

A Deputy appointed by the COP will receive a court order listing what’s permissible and what isn’t. In cases where a Deputy overlooks your financial affairs, they’ll have to get special permissions from the court of protection to sell jointly held properties or any other finance and property-related matter requiring a sole decision. 

Deputyship will be subject to supervision by the Office of the Public Guardian; they’re free to terminate it if an appointed Deputy falls short of meeting their set rules and guidelines.

You can determine the scope of legality and authorisation you grant your attorney in an LPA. You’re free to revoke an LPA anytime before you lose your mental capacity.

In case your family or loved ones have objections to your appointed attorney or believe there are valid reasons to object to their authority after you lose your mental capacity, they can file their objections with relevant documentary support with the OPG.

group-of-business-people-doing-paperwork-sitting-in the-office

Contact Zenco to Create Your LPA

Setting up an LPA is a wise choice to ensure your family members have a clear plan and instructions on how to manage your affairs in case you lose mental capacity. 

Our experienced legal experts will guide you through every step of the process. At Zenco, we can help you create an error-free LPA that involves a hassle-free experience.

Whether you’re looking to create a Power of Attorney, write a will, or set up a trust, our legal experts can help you take charge of your future.

For more information on our services, check out our guides or book an appointment now.

Kate Lawrence LL.B