Associate, Genevieve Powrie, discusses the differences between deputies and attorneys, including their roles, duties, costs and timescales.
Duties of a Deputy
A Deputy is an individual appointed by the Court of Protection to manage the finances of – or make health and welfare decisions for – someone who is unable to make decisions for themselves. This is because they lack the mental capacity to do so.
The powers of a Deputy are very similar to those of an Attorney (who is appointed in a Lasting Power of Attorney), but the supervision regime is very different.
A Deputy is required to prepare accounts and submit a report to the Office of the Public Guardian (OPG) every year. They are also required to take out insurance to reimburse the patient in the event that any abuse or mismanagement occurs. The Office of the Public Guardian scrutinises the accounts and provides regular support and guidance to the Deputy.
How Does the Role of an Attorney Differ?
An Attorney appointed in a Lasting Power of Attorney (LPA) faces no scrutiny unless the person now lacking mental capacity had requested it in the LPA document, or complaints are made about the Attorney. This means that – at least in theory – there is more risk of financial abuse with an Attorney managing affairs than with a Deputy. However, in practice, many more Attorneys than Deputies are registered with the OPG, and no correlation in OPG investigations have been recorded.
LPAs perform a helpful and even critical role in empowering individuals to make choices about their lives, both as a matter of simple convenience and when planning ahead for more vulnerable times. The majority of harmonious families get along very well with LPAs and they are a far cheaper, faster and, generally, a more convenient way of managing a person’s affairs during that twilight period of vulnerability where they haven’t yet lost mental capacity (and so cannot access Court of Protection Deputyship) but still need support.
Costs and Timescale Differences between Deputies and Attorneys
The average cost of appointing an Attorney in a simple LPA is around £600, if a Solicitor is used, plus an £82 registration fee. There are no further ongoing costs and it takes roughly 2-4 months to prepare and register an LPA.
The average straightforward application to appoint a Deputy in the Court of Protection is around £1,700.00. As most applications are not simple, and involve a number of family issues which need to be included in the application, it is not uncommon for it to cost more than this. Additional fees include:
- court fees of £365;
- medical practitioners fees of anywhere between £150 and £850;
- an admin fee of £100 from the OPG to appoint a Deputy; and
- an annual OPG supervision fee of £320.
There is also the insurance bond, which usually costs between £50 and £350 per year, depending on the level of the patient’s assets. The timescale is currently anywhere between five months and a year to obtain a final order appointing a Deputy. During this period of limbo, no one has the right to access the patient’s funds or pay for their care and it can be a very stressful time for families.
Whilst the Court of Protection serves a vital role in protecting the vulnerable and appointing people to make decisions for them where they otherwise could not, Powers of Attorney also perform a vital function in giving relatively fast, individually tailored solutions for people at a fraction of the cost of applying to the Court of Protection. An LPA also enables people to choose for themselves who they would trust to look after their affairs when they are vulnerable, rather than having a Court decide this for them.
Why Use a Solicitor?
It is important to use a Solicitor to advise and guide you through the process of making a LPA. Your Solicitor can:
- Check for capacity issues and undue influence, and offer satellite advice on either of these issues;
- Tailor your LPA to your own circumstances and ensure it is fit for purpose;
- Provide comprehensive advice on the types of LPAs available (Health and Welfare / Property and Financial Affairs)
- Draft bespoke clauses for guidance and restrictions to include in your LPA and advise you upon the effects of all of the options;
- Advise you on the powers and limits of LPAs and the duties of your Attorneys;
- Include clauses which reduce the risk of abuse or misuse;
- Incorporate administrative provisions, in response to the latest case law;
- Advise on the rules of gifting by Attorneys;
- Advise you on practical consequences of the misuse of an LPA and any legal remedies;
- Store your original LPAs in a secure fire-proof vault;
- Provide Solicitor-certified copies of your LPAs; and
- Oversee the paperwork and signing process, and act as Professional Certificate Provider and Witness.
For more information and guidance on Lasting Powers of Attorney and Court of Protection Deputyships, please contact Genevieve Powrie in our Private Client team on 01625 442146 or email [email protected].