Having a Lasting Power of Attorney (LPA) in place for your property and financial affairs, and your health & welfare is always preferred.
Crucially however, as mentioned in my previous blog post, Lasting Powers can only be made when you still have capacity. So what happens when you need someone to look after your affairs but there isn’t a Lasting Power of Attorney? That’s where deputyships come in.
In this short blog, we’ll explore the main types of deputyships and how they differ from LPAs.
What is a deputyship
As we’ve already established, deputyships only come into the equation when the person trying to make an LPA (often referred to as the donor) does not have capacity to make an LPA. They are a sister document to an LPA albeit a more time consuming and costly process. They are obtained by making an application to the Court of Protection.
Much like LPAs they enable a person (referred to as the deputy) to make decisions on your behalf if you lack the mental capacity to make those decisions yourself.
What are the different kinds of deputyships?
Similar to their LPA counterparts, there are two main types of orders; one for Property & Financial Affairs and another type for Health & Welfare.
Property and financial affairs order
A Property & Financial Affairs order will allow your deputies to make decisions about all your assets; they could sell or rent your property, access your bank accounts, pay taxes and even make gifts on your behalf. The order will refer to the scope of a deputy’s powers, e.g. it may limit your ability to sell the property that a person owns. Orders are prescriptive therefore if your order doesn’t say you can do something, you likely can’t.
Health & Welfare order
There is also an order for Health & Welfare order that can be made. This is far more personal and is in relation to who you see, where you live and who should provide your care amongst other things.
Generally speaking, orders to manage Property & Financial Affairs are more likely to be issued by the Court, perhaps due to their quantifiable nature, as opposed to a Health & Welfare order which is generally harder to obtain and may require approval from the local authority. The Court of Protection are only inclined to appoint deputies for Health & Welfare in the most exceptional of circumstances. They may even be inclined to make an order in respect of a specific issue raised as opposed to an open order granting such rights.
Limitations and restrictions
In both deputyships and LPAs, a Will can never be made on your behalf.
Unlike LPAs, deputyship orders usually results in a greater level of involvement from the court and will require your deputy to send yearly updates to the court. In addition, LPAs tend to be wide in the powers that they give whereas deputyship orders tend to be more specific in the powers that they provide.
Deputyships provide an important service if you don’t have capacity to make an LPA. If you do have capacity, however, you should make an LPA instead.
When you lose capacity to make an LPA, your preferred deputy can find out how to make an application for a deputyship with the Court of Protection in our next blog in the series.
If you need help making arrangements for your future, contact our Wills, Trusts and Probate team today for expert support and advice. Call us on 0161 930 5151, email us at Enquiries@gorvins.com, or fill in the online form here.