Most of us have heard of the term, 'Lasting Power of Attorney', but what happens if we don't have the mental capacity to make a Power of Attorney? Often, a Deputyship Order is required. So what is the difference between a Power of Attorney for Property and Finances, and a Deputyship Order?
A Power of Attorney for Property and Financial Affairs is a legal document enabling you to appoint someone you trust (the 'Attorney') to manage your property and finances. You must have the mental capacity (in accordance with the Mental Capacity Act 2005) to make a Power of Attorney. As you have chosen your Attorney yourself, the Office of the Public Guardian will not interfere in the management of your affairs, unless the Attorney is accused of wrongdoing.
If you lack mental capacity due to an unforseen accident, or condition such as advanced dementia, it is too late to make a Power of Attorney. Therefore, if someone needs access to your finances i.e. to pay your care fees, or to sell your property to fund care fees, a Deputyship Order in the Court of Protection is required.
A Deputyship Order involves the Court of Protection appointing a person that they deem to be suitable, to manage your affairs. This could be a relative or friend, or it could be a paid professional, such as a Solicitor. They are known as the 'Deputy'. As the Deputy is appointed by the Court, the Court must supervise them, which includes the requirement that they submit a return every year, accounting for all of your income and expenditure for that year. This includes toiletries, hairdressing, clothing etc and can be burdensome for the Deputy. There is also an annual fee payable to the Court when submitting the return.
Lasting Powers of Attorney are inexpensive in comparison to a Deputyship Order. For example, the registration fee for a Lasting Power of Attorney is £110, whereas the Court Fees for a Deputyship Order are over £1,000. Then there are the legal fees in additon to this.
At My Will My Choice, our legal fees are approximately half of those of a law firm, although your matter will be dealt with by fully qualified lawyer with over 10 years' experience.
The moral of the story is to make a Lasting Power of Attorney sooner rather than later, and ideally at the same time that you make a Will. If a friend or relative is diagnosed with a condition, such as cancer or dementia, it is imperitive that they make Lasting Power as soon as possible, to avoid the possible requirement of a Deputyship Order later on.
If you would like any further information regarding a Lasting Power of Attorney or Deputyship Order, please contact Emma Pringle on 01661 610 309 / 0774 385 7503 or see our website www.mywillmychoice.co.uk. We offer free home visits in the North East.