Managing someone’s affairs

Both a deputy and an attorney play critical roles in managing someone's affairs when they're unable to do so themselves, but the key difference between them lies in when and how they are appointed.

An attorney is appointed by an individual while they still have the mental capacity to make decisions for themselves. This is done through a legal document called a Lasting Power of Attorney (LPA) in England and Wales. There are two types of LPA: one for health and welfare decisions, and another for property and financial affairs. The individual can choose who they want to act as their attorney and can also specify any limitations or guidance for the attorney in the LPA.

A deputy, on the other hand, is appointed by the Court of Protection when an individual is already unable to make certain decisions for themselves due to lack of mental capacity and there's no LPA in place. The Court of Protection will consider the suitability of the person applying to be a deputy and will give them a legal mandate to make decisions on the individual's behalf. Unlike an attorney, a deputy is subject to supervision by the Office of the Public Guardian and may need to report to them periodically.

In both cases, the primary duty of the attorney or deputy is to act in the best interests of the person they're making decisions for. They are also expected to help the person participate as much as possible in any decisions that affect them.

A deputy or attorney is someone who is legally appointed to make decisions and act on behalf of another person who lacks the mental capacity to make those decisions themselves. The role can involve managing financial affairs, making healthcare decisions, or handling other important matters for the person they represent.

The process of becoming a deputy, normally, it involves the following steps:

1. Determine eligibility: Ensure you meet the legal requirements to act as a deputy or attorney. This typically includes being of sound mind and at least 18 years old.

2. Application: Submit an application to the appropriate court. The application will require relevant information about yourself and the person you intend to represent.

3. Assessment: The court will review the application, assess your suitability, and determine whether to grant the appointment.

4. Appointment: If approved, you will receive a formal appointment document, such as a court order, granting you the authority to act on behalf of the person in need.

The process of becoming an attorney under an LPA involves the following steps:

1. A Lasting Power of Attorney (LPA is a legal document that allows an individual (the donor) to appoint someone they trust (the attorney) to make decisions on their behalf if they become mentally incapable of doing so in the future.

2. Eligibility: Ensure that you meet the eligibility criteria to act as an attorney under an LPA. This typically includes being at least 18 years old and having the mental capacity to understand the responsibilities and duties associated with the role. The attorney must not be bankrupt.

3. Discussion with the Donor: Have an open and honest discussion with the donor, who is the person appointing you as their attorney. Understand their wishes, preferences, and specific instructions regarding the decisions they want you to make on their behalf.

4. LPA Creation: Our team will work with the donor to create the LPA document. The forms require details about both the donor and the appointed attorney.

5. Certification and Registration: An LPA requires certification to confirm that the donor has the mental capacity to make the appointment. The certification is usually provided by a healthcare professional or solicitor or if appointing Hilary Cragg, we will arrange an independent certificate provider. After certification, the LPA must be registered with the Office of the Public Guardian. There will be a registration fee involved.

6. Activation: The LPA becomes effective when the donor loses mental capacity, as determined by a healthcare professional or social care professional, depending on the circumstances. Prior to that, the donor may wish to have some help, but they will determine what help they want themselves.

7. Acting as an Attorney: Once the LPA is activated, you can start making decisions and taking actions on behalf of the donor, as outlined in the LPA document. It is important to always act in the donor's best interests and follow any specific instructions or restrictions provided in the LPA.

As a deputy or attorney, you have certain legal responsibilities, including:

1. Acting in the person's best interests: You must always make decisions and take actions that are in the best interests of the person you represent. This involves considering their wishes and preferences.

2. Managing finances responsibly: If you are appointed as a financial deputy or attorney, you must handle the person's finances responsibly, keeping accurate records and ensuring their money and assets are used appropriately.

3. Avoiding conflicts of interest: You must avoid situations where your personal interests conflict with those of the person you represent. This means acting in a selfless and impartial manner.

4. Keeping accurate records: It is essential to maintain clear and accurate records of all decisions made and actions taken on behalf of the person. This ensures transparency and accountability.

5. Reporting and accountability: Depending on the jurisdiction, you may be required to submit regular reports to the court or legal authority, providing updates on your activities and financial management.

Yes, it is possible to act as both a deputy and an attorney for the same person, but this depends on the legal framework and capacity to appoint an attorney.

As a deputy or attorney, you can be held legally liable if you breach your duties and responsibilities. This may include financial mismanagement, failure to act in the person's best interests, or neglecting your obligations. It is crucial to fulfil your role with care and seek legal advice when necessary to mitigate the risk of liability.

The duration of a deputy or attorney appointment can vary. In some cases, it may be for a specific period, such as when appointed for a specific task or event. In other cases, it may continue until the person's capacity is restored, or they pass away. The specific terms of the appointment are typically outlined in the court order or power of attorney document.