The term mental incapacity is derived from The Mental Capacity Act 2005 which is the law that helps people incapable of making decisions for themselves in England and Wales. This law provides a structure for both Lasting Powers of Attorney and Deputyship Orders. These methods work differently in fulfilling this law.
1. Legal Foundation and Conceptual Distinction
The law mentioned above states that people are assumed to have the ability to make decisions for themselves; any decisions made for an individual who is unable to do so must be made in their best interests. A Lasting Power of Attorney is a power given by a person, known as the Donor, to other individuals, known as Attorneys, to act on behalf of them, when they are mentally incapable of doing so. Deputyship, on the other hand, refers to when someone has already lost their mental ability to make decisions and thus requires a court to allocate someone to decide on their behalf, usually devolving this power to a family member/friend or other close acquaintance, even professionals at times, to act as the person’s Deputy through the Court Order.
The main difference is that Lasting Powers of Attorney are planned ahead while deputyship is a solution imposed by the court.
2. Lasting Powers of Attorney and the role of the Office of the Public Guardian
A Lasting Power of Attorney lets someone choose people they trust to make decisions about their money, property, health or welfare. These have to be registered with the Office of the Public Guardian before they can be used.
Lasting Powers of Attorney are used when someone wants to stay in control by choosing who makes decisions for them. They can only be set up while the person still has the ability to make decisions.
The Office of the Public Guardian have made sure there are safeguards around Lasting Powers of Attorney. For example, if there is evidence of abuse of power by an Attorney and it’s reported to the Office of the Public Guardian, they have the authority to investigate this abuse and intervene.
3. Deputyship Applications and the Court of Protection
If someone loses the ability to make decisions and a Lasting Power of Attorney is not in place prior, this will initiate an application to the Court of Protection. The court chooses someone called a Deputy to make decisions for them. Deputies usually make decisions about money and property.
Deputyship is more restrictive than a Lasting Power of Attorney because they get their power from the Court and have to abide by the directions given by the court and are supervised by the court.
4. When Each System is Used
The choice between Lasting Power of Attorney and Deputyship depends on whether the person can make decisions:
- Lasting Power of Attorney: Used when the person can still make decisions and wants to plan ahead. It’s proactive and generally easier and less expensive.
- Deputyship: Used when the person can’t make decisions and doesn’t have a Lasting Power of Attorney. It requires a court application and ongoing supervision.
5. Oversight, Safeguards and Practical Implications
Both systems have safeguards although they work differently. The Office of the Public Guardian keeps an eye on people with Lasting Powers of Attorney. It’s not as strict as Deputyship Orders. Deputies on the other hand have to report to the court and are supervised closely.
The Court of Protection can also look into Powers of Attorney and remove people who are not doing what’s right. This shows that both systems are overseen by the court but in different ways.
In practice, Lasting Powers of Attorney are usually faster and less expensive. Deputyship, however, involves delays, legal costs and complicated procedures, which our Seasoned Specialist Solicitors at Lewis Nedas Law are here to assist you through any of the processes.
In summary, Lasting Powers of Attorney and Deputyship Orders help people make decisions for those who can’t. However, they operate differently in terms of timing, autonomy and legal process. Lasting Powers of Attorney let people choose who makes decisions for them in advance. Deputyship is a court-imposed solution when someone has already lost the capacity to make decisions. Both follow the principles of the Mental Capacity Act 2005 the requirement that decisions be made in the person’s best interests.
Mary Nwabuzor is a specialist practitioner, of many years standing and is highly respected in her field. Contact us on our enquiries page or by telephone on 020 7387 2032.