Lasting powers of attorney (LPAs) enable thousands of vulnerable people to have their financial and other affairs managed by others whom they trust. However, as a High Court case showed,...Continue reading
An attorney is similar to a Deputy in that they have been appointed to help make decisions on behalf of someone else.
The key difference between the two is that an attorney has been chosen by the individual they are acting for by completing either a Lasting Power of Attorney (LPA) or an Enduring Power of Attorney (EPA) when they have mental capacity.
Enduring Power of Attorney (EPA)
An EPA is a legal document with which you can use to appoint someone to make decisions on your behalf should you lose your mental capacity and become unable to make certain decisions for yourself. EPAs were replaced by Lasting Power of Attorneys (LPAs) in October 2007. However, any EPAs signed and dated before 1st October 2007 will still be valid and can be registered with the OPG when the donor starts to lose or has lost their mental capacity.
Lasting Power of Attorney (LPA)
Like an EPA, a Lasting Power of Attorney is a legal document which allows you to appoint someone to make decisions for you if you lose your mental capacity and become unable to make those decisions for yourself. There are two types of LPA:-
- Health and Welfare
- Property and Financial Affairs.
Both types of LPA must be registered with the Office of the Public Guardian (OPG) before they can be used.
Capacity refers to the ability to make a specific decision at the time it is needed. You can find a legal definition of a person who lacks mental capacity in section 2 of the Mental Capacity Act 2005.http://www.legislation.gov.uk/ukpga/2005/9/section/2
This is the term the used to describe the person you have been appointed to act on behalf of (formerly they were referred to as the ‘patient’).
This is someone who is appointed by the Court of Protection to make decisions on behalf of someone who has lost the mental capacity to make certain decisions for themselves.
Property Affairs and Deputyship
A property and affairs deputy is someone who is appointed to make decisions relating to the money and property belonging to the client. This includes all income investments and expenditure, as well as any decisions to be made regarding selling or renting a property. This is essentially the same decision-making power granted by an LPA for property and financial affairs.
A personal welfare deputy is appointed to make decisions regarding the client’s general care and well-being. This includes what they wear, where they eat and where they go on holiday. This is generally the same decision making powers granted by a health and welfare LPA.
A bond is an insurance policy set up at the outset of a Deputyship to ensure the client is protected from any financial losses that could occur as a result of decisions made by the Deputy. Where a loss is identified the bond will be called in and the Deputy may be asked to repay the company that has issued the bond. The amount of the bond is a judicial decision and if you want to amend it you must apply to the Court of Protection to do so.
Any decisions made, or any actions taken on behalf of a person who lacks the mental capacity to do so for themselves, must be made in the client’s best interest. There are standard minimum steps to follow when working out someone’s best interests. These are set out in section 2 of the Mental Capacity Act 2005 http://www.legislation.gov.uk/ukpga/2005/9/section/2
A donor is someone who has created either an LPA or EPA. They are referred to as a donor as they have donated their decision-making powers to someone else.
Office of the Public Guardian http://www.justice.gov.uk/about/opg
Court of Protection https://www.gov.uk/court-of-protection
Mental Capacity Act http://www.legislation.gov.uk/ukpga/2005/9/contents