Lasting Power of Attorney or Deputyship?
Since the issue of whether or not to make a lasting power of attorney (LPA) came under scrutiny with recent comments from a retired senior judge, there has been much debate on the topic.
Whether it is preferable to make an LPA – whereby a person nominates those who will handle their financial affairs if they lose capacity – or a deputyship – where a person is appointed by the Court of Protection to take on this role – has firmly come under the spotlight.
Denzel Lush, a retired judge who spent more than 20 years in the Court of Protection, pointed out the supposed lack of safeguards in the LPA system, which could have a “devastating” effect on families. He instead pointed to deputyships as being a better option, due to the levels of safeguarding by the Court.
While both options enable the management of the financial affairs of a person who has lost the capacity to do so, there are certainly major differences between the two.
An LPA is made by a person who has capacity to do so, and offers a means to nominate the person or people they want to handle their affairs if ever they are unable to do so – this is usually a close family member, trusted friend or professional advisor. They, therefore, have the certainty that the people they want to act on their behalf, should they lose capacity, will be legally entitled to do so.
Attorneys appointed through an LPA are not subject to ongoing Court supervision and do not have to provide accounts, which was one of the main points highlighted by Denzel Lush – but while that may result in them potentially being open to abuse, through appointing a trusted family member, friend or advisor, the risk is usually seen as being minimal.
A deputyship, however, does offer the security of those who are appointed being subject to scrutiny. There are tighter regulations in comparison to an LPA and every Deputy has to provide annual accounts and pay a £400 fee.
While this is often seen as a favourable aspect of a deputyship, a drawback for many is that you will have no say in who is appointed as your Deputy. People can apply to the Court of Protection to act on behalf of someone who has lost capacity and the Court makes the decision – that decision may be very different to the person’s true wishes, had they been able to specify them. The Court can also take up to six months to make its appointment, which can pose its own problems if matters need to be handled urgently.
There are certainly arguments for and against both an LPA and deputyship, and I can see both sides. It remains the case that I would always advise making an LPA so you can have control over who would handle your affairs should you ever lose the capacity to do so, and a specialist solicitor can help guide you through the process to give you peace of mind that your future remains in your hands.
For any further advice or guidance on the subject, a solicitor can help you consider your options.
Jessica Morton is a specialist Wills and Probate solicitor at law firm Sintons, based in Newcastle. To speak to her about this or any other matter, contact Jessica on 0191 226 7801 or firstname.lastname@example.org