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Written on 11th February 2021 by

Whilst the roles of a Deputy and Attorney are similar, there are some important differences that you should be aware of. Let’s start by looking at each of the roles.

Deputy

When someone lacks the capacity to make decisions for themselves and no power of attorney is in place, an application can be made to the Court of Protection for the appointment of a deputy.

A deputy can only be appointed when someone lacks capacity, not before capacity is lost.

A deputy can be appointed to manage an individual’s property and financial affairs or an individual’s health and welfare. However, the Court will only appoint someone as a deputy for an individual’s health and welfare in very limited circumstances.

The Court will make a Deputy Order which will set out the powers of the deputy.

As an application needs to be made to the Court, the process of appointing a deputy tends to take longer and cost more than appointing an attorney.

Attorney

A power of attorney can be a ‘lasting’ or ‘enduring’ power of attorney. Whilst is it is no longer possible to set up an enduring power of attorney, if one is in place then it can still be used if it has been correctly prepared.

A power of attorney is set up by an individual over the age of 18 when they have capacity in preparation should they lose capacity. The document will set out who the individual wishes to look after their affairs should they lose capacity in the future. An attorney can be responsible for managing an individual’s property and financial affairs or an individual’s health and welfare.

The power of attorney will not usually take effect until the individual loses capacity.

So what is the difference between a deputy and an attorney?

An attorney can only be appointed whilst an individual has capacity to do so. A power of attorney allows an individual control over who is appointed as attorney and what powers they have.

A deputy can only be appointed once an individual lacks capacity. Therefore, the individual has no control over who their Deputy is or what powers they have.

Another important difference to note is that a deputy has more obligations than an attorney. For example, a deputy must submit an annual report to the Office of the Public Guardian which accounts for all financial activity over the past year. A deputy must also put in place a security bond; this is like an insurance policy. Whilst these measures are designed to protect the individual who lacks capacity, there is a cost involved.

We would recommend that you put in place a power of attorney, if you can, whilst you can. Whilst it may be that the power of attorney is never needed, it will be much quicker and cheaper to put this in place as a precautionary measure than having to appoint a deputy later after capacity has been lost.

How can we help?

If you have any queries or questions about deputyship or powers of attorney then please contact our specialist Court of Protection team by email on cop@boyesturner.com