I’m frequently being asked if being a Deputy is the same as being an Attorney. The answer is essentially yes; but there are some very important practical differences.
Attorney versus Deputy
A lasting power of attorney (LPA) is a way of giving someone you trust the legal authority to make decisions on your behalf if you lack mental capacity at some point in the future or no longer wish to make decisions for yourself.
You can only appoint an Attorney under an LPA if you have the mental capacity to understand what you are doing at that time.
The process for assessing a person’s capacity is detailed within the Mental Capacity Act 2005 and its code of practice. It is complex; but in summary, you need to be able to understand relevant information, retain that information in your mind, weigh it up and then communicate your decision to appoint an Attorney.
In contrast, a Deputy is appointed by the Court of Protection (COP) to manage the property and affairs and/or personal welfare of someone who lacks the capacity to make decisions for themselves.
The level of ongoing supervision once a Deputy has been appointed is very different to that of an Attorney.
A Deputy is required to complete an annual report to the Office of the Public Guardian (‘OPG’) and must account for all expenditure made on behalf of the person who has lost capacity. They must pay an annual fee to the OPG towards the cost of their supervision.
On the other hand, an Attorney appointed under an LPA is not required to report to the OPG on an ongoing basis and their annual expenditure is essentially unsupervised.
Deputies are visited from time to time by a visitor from the COP to ensure the deputyship is working and that the Deputy is making decisions in the best interests of the person lacking capacity. However, Attorneys do not have this same level of supervision and scrutiny.
In addition, a Deputy is required to arrange and maintain an annual security bond which is a type of insurance to cover against financial loss caused by the Deputy, either deliberately or unintentionally. There is no requirement for a security bond for Attorneys.
Why are Deputies treated differently?
Many people I speak to find it strange that although both an Attorney and a Deputy have the same duties and responsibilities under the Mental Capacity Act, one is subject to vigorous ongoing supervision while the other is largely left to their own devices.
Appointing a Deputy is a significant decision that impacts on most aspects of an individual’s day-to-day life. It is difficult to think of many other situations in England and Wales in which the State would make such an important decision concerning someone’s individual property and financial affairs. With this in mind, it makes sense that the Court seeks to ensure the person appointed as Deputy is properly supervised and kept under review.
Implications for Deputies
In recent months, I’ve been contacted by many lay Deputies seeking advice on their reporting obligations to the OPG and visits from the Court. There has been a shift in recent months towards an even greater level of scrutiny that many are finding onerous.
I’ve spoken to many Deputies who find the process of completing the lengthy annual OPG report very stressful.
It’s often the case that lay Deputies lead very busy lives and often have to juggle many roles such as doing their job, providing care, looking after their family and being responsible for another person’s property and financial affairs.
The burden placed on lay Deputies has been increased further by new OPG Deputy report forms that are much longer and require far greater detailed information.
Help for Deputies
At Hyphen Law we are specialists in managing the property and affairs for people who lack mental capacity to manage their finances themselves. We also have the experience and expertise to assist Deputies with as much or as little help as they feel is needed. For example, we can help you complete the new OPG report, assist with applications to the COP as well as provide expert help on all the day-to-day aspects of being a Deputy.
Please get in touch if you would like to discuss any aspect of the process involved in appointing an Attorney under an LPA or a Deputy via the Court of Protection.
For more information on how we can help you call: 0845 160 1111 or email us.