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No Lasting Power of Attorney in place? What happens instead?

View profile for Jamielee Vernon
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No Lasting Power of Attorney in place? What happens instead?

Making a Lasting Power of Attorney (LPAs) is like taking out home insurance – you hope you are never in a position to need it, but you are protecting your future self in case you do.

If you find yourself in a position where you lack mental capacity to make LPAs, the only alternative route is for someone to apply to the Court of Protection to become your Deputy. This can be someone close to you, a professional deputy such as a solicitor or the Local Authority.

Deputyship applications are the last resort and quite often sparked at quite a stressful and difficult time and unfortunately the process is costly and lengthy, which is not helpful when action is usually required immediately!

Don’t wait until it’s too late, ensure your future wishes are in place today. If you need to make or update your LPAs, contact our team for expert advice on 01983 527878 or email us at hello@gdlegalservices.co.uk 

Key differences between LPAs and Deputyship

                                  Lasting Powers of Attorney

Deputyship

When it’s madeBefore someone loses mental capacityAfter someone has already lost mental capacity

Who is the decision maker

YourselfThe Court of Protection
What is the process
  1. Meet with a solicitor and discuss your options – you can make one in relation to your property & financial matters, and one in relation to your health & welfare matters.
  2. The solicitor will complete two separate forms for you and your attorneys to sign.
  3. Once signed, they are then sent to the Office of the Public Guardian to be registered. This can take up to 12 weeks.
  4. Once registered they are ready to be used at any point if required.
  1. Meet with a solicitor about becoming a Deputy and what your duties are. 
  2. For each application there is a minimum of 8 forms to be completed.
  3. A formal capacity assessment will need to be carried out by a qualified professional.
  4. At least three interested parties will need to be notified as part of the process. The person who lacks capacity will also need to be notified.
  5. The notified parties have 14 days to respond to the application.
  6. Once the application has been submitted and the notifications have been dealt with (with no disputes) it can then take up to 6 months for an order to be issued. In some cases, it can take up to 12 months due to backlogs.
Assessment of capacity Solicitors will carry out their own capacity assessment in line with their duties, but an independent formal capacity assessment can be obtained if required. 

A formal capacity assessment is required to be completed by a qualified medical professional, which can be someone already involved with the person who lacks capacity. If they cannot assist, a private assessment will need to be carried out which can be costly.

Time frames12 weeks to register the documents with the Office of the Public Guardian.

6-12 months from applying to the Court and receiving the order.

CostSolicitors’ fees, which are often fixed, and cheaper than Deputyship fees. The Office of the Public Guardian registration fee is £92 per document.The Court sets the solicitors’ fees, they can be significantly higher than the cost of an LPA. A capacity assessment would need to be carried out as part of the application, private costs for this can be in the region of £400. Also, the Court fee is currently £421.

Control and Flexibility

You set all instructions and limits for your attorneysThe Court sets the powers and restrictions. Depending on what your needs are at the time, the Deputy may have to make further additional applications in the future for specific decisions.
Best interestsDecisions are guided by your wishes and the powers contained in the documents you made. Whilst you have capacity you can have conversations with your attorneys about your wishes.There is limited opportunity for your deputy to make decisions which you may have expressed in the past that are beyond the Court Order. Further Court Orders may need to be obtained.
Ongoing monitoringAttorneys must always act in your best interest. Minimal supervision of attorneys, unless concerns are raised to the OPG, and an investigation is carried out. Your deputy would be required to submit annual reports to the Office of the Public Guardian.