Both of these important documents allow an appointed individual to manage the affairs of someone who is unable to do so for themselves but what is the difference between the two?
Any person who is aged over 18 and has capacity to make their own decisions can make a Lasting Power of Attorney. This document will appoint attorneys to handle their affairs on their behalf should they be unable to do this themselves in the future. This document is then registered with the Office of the Public Guardian so it can be used by the appointed attorney.
The donor (the person making the Lasting Power of Attorney) has the ability when creating the document to determine whether they would want the document to be used instantly, or they can indicate that the document should be used when they no longer have the ability to make decisions themselves. Donors can also add their own preferences and instructions for their attorneys such as liaising with their financial advisor before making any investments or financial decisions on their behalf.
It is vitally important to understand that it is not possible to put a Lasting Power of Attorney in place for someone if they no longer have the ability to make their own decisions.
Therefore, if someone has lost capacity without a Lasting Power of Attorney in place, then an application should be made to the Court of Protection for a Deputyship Order.
To make a successful application for deputyship, a capacity assessment will have to be carried out as a way of confirming that the individual no longer has the capacity to make their own decisions. Once the application has been completed and submitted, the Court will process it as well as create and Order appointing a deputy or deputies for the individual who no longer has the capacity to make their own decisions.
An application for deputyship can be made from a friend of the family or a family member as well as solicitor’s firm. Once a deputy has been appointed, it is vital that they comply with the relevant terms of the Order and the directions that the Court provides. They will also be required to file annual accounts with the Office of The Public Guardian and so, they will be expected to keep all records of spending updated.
A Lasting Power of Attorney provides a donor with the ability to control and decide who manages their finances should they become incapable of doing so themselves in the future and also stipulate how they should act. If you do lose capacity without a Lasting Power of Attorney then you have no control over who the Court appoints and what they might be authorised to do for you.