Delays with Deputyship applications highlight importance of Powers of Attorney

While we are hearing encouraging reports that we are over the worst of the Omicron peak here in the UK, the coronavirus pandemic has had a lasting effect on virtually every aspect of our lives, not least the delays it has caused within the legal system.

As Wills & Probate solicitors, we regularly have to prepare applications to the Court of Protection for one or more people to be appointed as Deputy for another individual who has lost their mental capacity to ensure their financial affairs can be managed. Pre-pandemic, it would have taken around 4 to 6 months to obtain the Order appointing the Deputy, but we are currently experiencing turnaround times of 8 to 10 months to obtain the Order, even for straightforward applications!

This can cause incredible frustration for the incapacitated person’s families and friends as during this time, no-one has the legal authority to manage their financial affairs.

What is a Deputyship?

In simple terms, a Deputyship is authority from the Court of Protection to manage that person’s financial affairs and/or make specific decisions regarding their health and welfare.

Typically, a Deputyship application is required when an individual has not prepared a valid and useable lasting (or enduring) power of attorney while they had the mental capacity to do so. So, for example, if someone who has lost their mental faculties and does not have the necessary legal documents in place, the Court will need to appoint a Deputy to manage their bank accounts and investments, pay their bills and sell any property they own.

What is the difference between an Lasting Power of Attorney (LPA) and Deputyship?

The key difference is timing. In an LPA, attorneys are appointed by the person before they lose their mental capacity whereas a Deputy is appointed by the Court of Protection after someone has lost their mental capacity.

There are other differences too. Even without the current delays, a Deputyship application is, generally more time-consuming and more costly than preparing an LPA. The initial Court application fee alone is currently £371, compared to £82 for a registration fee payable to the OPG. Depending on the complexity of the Deputyship application, the legal fees should you use a solicitor can also often be more than two or three times those of an LPA.

With a Deputyship, there are also ongoing annual fees payable to the OPG, as well as insurance and annual reporting requirements, none of which are required with an LPA.

Why should I consider getting a Lasting Power of Attorney?

None of us like to dwell too much on the unpleasant things that could happen to us as we get older but it’s important to plan ahead. These delays in Deputyship applications have brought into sharp focus the importance of preparing a Lasting Power of Attorney for yourself or a loved one, before mental capacity is lost.

The statistics are frightening. One person in the UK develops dementia every three minutes, and yet without an LPA, relatives can’t just walk into a bank and access their money, even if it is to pay for their care.

A Lasting Power of Attorney (LPA) allows you to take control and choose who you trust to make important decisions about your health, care and finances on your behalf, should you ever need them to.

What types of LPA are there?

There are two types, one for financial decisions and one for health and care.  These are separate documents and you can decide to appoint different Attorneys in each document.  You can also appoint Replacement Attorneys to step in if your first choice of Attorney(s) are no longer able to act for you.

As well as being useful for those who lose mental capacity, a financial Lasting Power of Attorney also allows you to appoint someone to act on your behalf if you are (or become) physically unable to deal with your property and financial affairs. In this scenario, you would still remain in control of the decision making.

How much does an LPA cost?

The Office of the Public Guardian charge a fee of £82 for each separate document and their validation process takes approximately 10 weeks. If you earn less than £12,000 a year, you may be entitled to a reduced fee. We would advise you to use a solicitor so you’ll also have to pay their legal fees.

Next steps

The LPA is a powerful legal document. If you’re at all unsure about the process or want advice on why or how to set one up, it is worth seeking legal help. At Harding Evans, our team of friendly, sympathetic, expert Wills & Probate lawyers have years of experience in dealing with LPAs and can help guide you through the process. Visit our website at www.hardingevans.com, email hello@hevans.com or call 01633 244233 or 029 2267 6818.