Lasting Powers of Attorneys and deputyships are legal methods by which decisions can be made for persons lacking mental capacity. The key difference between them is that an LPA is made by a person who has capacity to appoint a person or people to look after their affairs at a time when they are unable to do so themselves whereas a deputy order is an application made by a third party when a person has already lost capacity and the LPA is not an option.

The advantage of making a Lasting Power of Attorney while you are capable is that you choose who can look after your affairs when you are unable to do so yourself. The Lasting Power of Attorney can be used immediately if it has been registered, therefore the moment the appointed attorneys have reason to believe capacity has been lost, they are able to take over a persons affairs without delay.

A Deputy Order, on the other hand, may be required for a person who already lacks mental capacity and who has assets that need to be administered or decisions taken about their personal welfare as soon as possible, well, at least that is the intention.

An example of this is when a person with dementia will need a Deputy to collect their income and benefits and sell assets in order to pay care home charges or a person with an acquired brain injury would need a Deputy to administer a court settlement to pay for an ongoing care regime, or make decisions about medical treatment. With no Lasting Power of Attorney in place, the Deputy Order route is the only route a concerned third party can take.

Unfortunately, the application process often results in the freezing of the mentally incapable person’s assets, daily outgoing costs building up and nursing home fees or accommodation charges falling into arrears. The intended Deputy is helpless pending the completion of the application process and may need to make additional requests to the Court of Protection to allow the release of funds to cover immediate emergencies. This latter request requires the completion of yet more paperwork and the producing of supporting evidence. The whole process can take months and in one particular case we have experienced the Deputy Order application is not yet complete, having commenced nearly a year ago. Meanwhile, the incapable person has no access to funds for daily living nor has their intended Deputy.

In addition, the Court of Protection places numerous obligations on the Deputy, as a safeguard to the person lacking capacity. These include obtaining a security bond, complying with supervision by the court and filing annual reports and accounts.

The whole point here is that it is best to have a Lasting Power of Attorney executed and registered with the hope your deputies never need to use it, but, at least if the worst occurs, your affairs are not left in turmoil while the application is in progress for either registration of a Lasting Power of Attorney, or even worse, application for a Deputy Order .