I expect you will have read from time to time about Lasting Powers of Attorney. You will also doubtless have heard about appointments of Deputies by the Court of Protection. I am frequently asked the question what is the best way forward if someone were to lose mental capacity, for example with a stroke.
A Lasting Power of Attorney is a legally binding document. It allows you as Donor to choose who your Attorneys will be. These are the people you want who may make decisions on your behalf should you lack mental capacity. Attorneys are chosen by you the Donor, and an Attorney carries considerable responsibilities. It is therefore necessary to choose someone in whom you have complete faith and trust. You can only make a Lasting Power of Attorney if you have mental capacity at the time you make it.
A Deputy is someone appointed by the Court of Protection. The appointment is made after someone who does not have an LPA in place loses mental capacity. It is a complicated process which involves a number of forms and a number of applications to the Court. The person appointed by the Court of Protection could be a family member, but is often a designated professional such as a social worker or lawyer.
HEALTH AND WELFARE
It is rare for the Court of Protection to appoint a Deputy to deal with the health and welfare issues of someone who has lost mental capacity. However, there is a specific Lasting Power of Attorney for health and welfare. This allows the Attorney to make decisions about personal welfare which can include decisions about:-
- Life sustaining treatment
- Where you should live and who you should live with
- Your day-to-day care including diet and dress
- Who you may have contact with
- Consenting to or advising medical examination and treatment on your behalf
- Arrangements needed for you to be given medical, dental or optical treatment
- Assessments for and provision of community care services
- Where you should take part in social activities, leisure activities, education or training
- Your personal correspondence and papers
- Rights of access to personal information about you
- Complaints about your care and treatment
If you do not go down the LPA route, and were you to lose mental capacity, the only alternative is to apply to the Court of Protection for the appointment of a Deputy. The procedure is significantly more complicated than that for LPAs. Many applicants will need legal help, and that often costs in the region of £5,000, plus a Court fee of £320. That is not the end of it, however – there are ongoing costs. These include up to £320 a year for the recurring Court fee and an annual fee for a surety bond the Deputy has to pay out in the event that the funds are misused. Annual reports and accounts have to be submitted to the Court, and Deputies may require professional assistance to prepare these. It would also be necessary to make an application to the Court for interim order such as if the Deputy needed to sell a house, and there will be costs of maintaining the Deputy’s affairs which are assessed on an annual basis and which also attract a fee. In my experience the annual costs of looking after the patient’s affairs under a deputyship can run into thousands of pounds a year.
It should therefore be a no-brainer that Lasting Powers of Attorney should be done and done as soon as possible – minimising the risk of losing mental capacity and thereby being excluded from putting the LPA in place. Should you make a property and financial affairs LPA you can include a restriction stating that the Attorney’s powers cannot be used until you have lost mental capacity. Alternatively the Attorney can be instructed to assist as soon as the document has been registered with the Office of the Public Guardian.
So what safeguards are there for an LPA? The main safeguard remains you choosing the right Attorney. It must be someone in whom you have great faith and trust, and someone who is competent and willing and able to assist. The application process will also require a certificate to be provided by an independent third party. That person must confirm that you as Donor are fully aware of the effect of the LPA. They must also certify that you are not being unduly pressured to prepare the document. Each Attorney signing the document has to confirm that they will follow the principles of the Code of Practice of the Mental Capacity Act 2005. The Code spells out that they must always act in the Donor’s best interests at all times. Should they fail to do so, the Court can step in and take appropriate steps to remove them as Attorney.
So what safeguards are there for a deputyship? The Court requires some safeguards to be put in place to guard against the misuse of the patient’s funds. These include entering into the surety bond which would pay out if the Deputy misuses the patient’s funds. It involves regular support meetings between the Deputy and a Visitor appointed by the Court. It requires annual reports to be filed with the Court on behalf of the patient, and these are reviewed by the Court.
How much does it cost? As you will see from what I have spelt out above, the annual cost of looking after a patient’s affairs under a deputyship can cost thousands of pounds each year. As well as the set-up costs, there are recurring annual fees, and almost certainly the need for some professional advice from lawyers and accountants. LPAs which I prepare cost £250 plus VAT for each one (against a national average of £365 plus VAT). There is also a fee payable to the Office of the Public Guardian for each LPA of £82.
As always, there will be cases of financial abuse by both Deputies and Attorneys. For Deputies the abuse may come to light during a visit from the Court appointed Visitor, or when the annual reports are reviewed by the Court. For LPAs, should the Donor retain capacity and an Attorney is mismanaging their affairs, they can report it to the Office of the Public Guardian. Third parties can also raise concerns with the Court for both Deputies and Attorneys.
There have been many cases of abuse by both Deputies and Attorneys. Ultimately for Deputies the Court can remove such a person if misconduct is found. The surety bond should also compensate the patient and anyone appointed to replace the Deputy. Litigation is also an option for a Deputy in seeking to recover misappropriated assets from a removed Deputy. A Court will likewise investigate and can ultimately remove any Attorney who has not acted in the Donor’s best interests or has misused their assets. Court action to recover misappropriated assets is also possible.
WHICH TO CHOOSE?
So which should you choose? With a deputyship you get a far more structured and supervised regime. The down side is a significantly greater costs, and continuing association with the Courts with the need for orders each year. With an LPA, the critically important factor is to get the choice of Attorney right. It is my considered view that a well drafted LPA appointing Attorneys you can really trust is to be preferred to a deputyship. The Attorneys are people you choose, but a Deputy may be someone you do not know who is appointed by the Court. Also remember that the Court will very rarely grant a deputyship order with regard to the health and welfare of a patient. It prefers instead to make decisions on specific issues – and this obviously involves yet greater expense.
If you require LPAs to be put in place then do get in touch with me here at Busbys on 01288 35 9000 or e‑mail us at firstname.lastname@example.org.
Bude & Holsworthy