Deputyship: an overview
If a person loses the ability to make decisions for themselves and they have not already made Lasting Powers of Attorney, then the only option is for someone to apply to the Court for a Deputyship Order. This is a legal document granted by the Court which gives someone legal authority to make decisions on behalf of a person who is unable to make these decisions on their own.
A Deputyship Order has similar effects as Lasting Powers of Attorney, in that it grants named individuals with legal authority to manage another person's affairs. As with Lasting Powers of Attorney, there are two types of Deputyship Order; one for health and welfare and another for property and financial affairs. There are however a number of differences between the two:-
One of the main differences between a Deputyship and Lasting Powers of Attorney is the cost. If the Deputyship application is being prepared for you by solicitors then their fees are likely to be much more than they would be for preparing Lasting Powers of Attorney. This is due to the complexity of the documents and the application process.
Further, the court fee to apply for a deputyship order is currently £365. This fee will need to be paid twice if both types of Deputy are being applied for. There are also fees if the court decides that hearings are needed and annual fees that have to be paid one the Deputyship Order is made. This is compared to the court fee of £82 to register each Lasting Power of Attorney.
A Lasting Power of Attorney can only be made by the person that it relates to (the donor). However, a Deputyship Order can be applied for by anybody, it does not just have to be your family.
Lasting Powers of Attorney can only be made by a donor whilst they still have capacity to make all their own decisions. This means that Lasting Powers of Attorney have to be made before they are needed. If a donor does not have capacity and they have not made Lasting Powers of Attorney, this is the time that a Deputyship Order can be applied for.
Who can be appointed?
Under a Lasting Power of Attorney, the donor has complete control over who they pick to be their attorney. A donor can pick multiple attorneys that could be their friends or family etc. The Lasting Powers of Attorney also allow a donor to pick replacement attorneys who can step in and act if the original attorney(s) are not able to do so.
Under a Deputyship Order, the decision about who can be appointed is not the donor’s; anybody can apply for a Deputyship Order.
How long does it take?
Arranging Lasting Powers of Attorney is a relatively straightforward process and the documents can be put in place very quickly. Once the documents have been signed by all of the parties it will be sent off to the Office of the Public Guardian to be registered. As soon as the document has been registered, it is ready to be used when needed.
When it comes to a Deputyship Order, this is a bit different. Because of the complexity of the application papers and the application process itself, this can often drag on for several months before it is finalised. Whilst this application is ongoing, nobody has the legal authority to make decisions for the donor.
For Deputyship Orders it is always important to remember that ultimately the decision whether or not to grant the order is at the court’s discretion. This is reflected by the fact that the Court of Protection only grants approximately 30% of Health and Welfare Deputy applications.
Deputyship Orders are certainly useful and the staff in the Private Client Team at Battens are more than happy to advise you on this, although we would always advise individuals to consider making Lasting Powers of Attorney whilst they are still able to do so.
More related private client articles here.