A lasting power of attorney gives the attorney or attorneys you appoint the authority to manage your financial affairs in the event that you lose the ability to do so yourself.
You can only make a lasting power of attorney when you still have sufficient understanding about what it is, and the implications of putting such a power in place. Therefore it is usually not possible to make a lasting power of attorney at the time when it is needed.
If you have not made a lasting power of attorney, you lose the ability to manage your finances and someone needs to do so on your behalf, then the alternative would be for somebody to apply to court for an order to be appointed as a deputy on your behalf.
There are various advantages to lasting powers of attorney over deputyship orders:
- You choose your attorneys, who should be people you completely trust and consider willing and able to manage your finances, whereas the court will choose your deputies. Whilst the court may choose the people you would have chosen, you cannot guarantee this. This issue might be particularly important for you if you have close family members who you would not want the court to appoint, or your circumstances are such that it is not clear who is closest to you.
- Lasting Powers of Attorney are put in place in advance. This means that they are available to be used as soon as they are needed, whereas the process to apply for a deputyship order only starts once it is needed, and the whole process can take 3-6 months, which could cause inconvenience to you or the people managing your finances if, for example, they need access to your funds to pay for care home fees.
- You can also authorise your attorneys to make decisions on your behalf even when you are still able to do so. There is also a lasting power of attorney for health and welfare decisions which some people also like to make. The standard deputyship order only covers property and financial decisions, and the court will only issue a deputyship order covering health and welfare decisions in rare circumstances. This can be useful in circumstances where you are still able, but are losing interest in managing your finances. This flexibility is not possible with a deputyship order.
- It is cheaper and simpler to put a lasting power of attorney in place than to apply for a deputyship order. Due to the amount of work involved, our fees to assist you in putting a lasting power of attorney in place are also much lower than our fees to apply for a deputyship order. The cost to register a lasting power of attorney is currently £82. The court fee upon application for a deputyship order is currently £400.
- It is cheaper and easier for your attorneys to act under a lasting power of attorney than under a deputyship order. The level of supervision of attorneys is usually lighter than for deputies. Deputies have to produce annual reports to the court, purchase annual indemnity insurance and pay an annual deputyship fee. Whilst your attorney’s duty is to act in your best interests, it is only in rare circumstances that they are directly supervised by the court.
- Lasting Powers of Attorney are easier to use in relation to jointly owned property.However, a deputy will require a further order from the court before being able to deal with jointly held property. If you own a property jointly with someone else, then your attorney will be able to deal with the property alongside your co-owner.
However, one advantage of deputyship orders over lasting powers of attorney are that the costs and relative inconvenience of deputyship orders would only be incurred if they are needed, whereas if you proceed with a lasting power of attorney, the costs of putting it in place would be incurred whether or not it is subsequently required.
Furthermore, Denzil Lush, a recently retired senior judge at the Court of Protection, has commented that he prefers Deputyship Orders over Lasting Powers of Attorney due to the security against the risk of financial abuse that the higher level of court supervision offers.
Whilst we completely agree that this is an issue which you need take very seriously, in our view with your personal knowledge you will be better able than the court to identify suitable people to look after your finances than the court will, and that your freedom to choose appropriate attorneys, together with professional advice to alert you to the issues in this regard, will usually give you better protection than if you were to end up with a deputy who you might not have chosen.
We consider that it is sensible to review your property and finances, and to decide whether it would be likely to cause inconvenience to you, or to anybody looking after you, if you were to lose the ability to manage these without having put a lasting power of attorney in place.
We are on hand to help with any queries you may have in regards to Lasting Powers of Attorney or Deputyship Orders. Our private client solicitors are based in Wakefield, Dewsbury, and Horsforth. Feel free to call us on 0330 300 1103 or request a call back by clicking here.