Appointing an attorney is an extremely important decision – do you have someone that you trust to make decisions about your finances or would wish to burden with this responsibility? Would they in turn agree to take this role on? Are they likely to be able to carry out this role for the foreseeable future?

Appointing a deputy

The existence of the Court of Protection and its ability to appoint a Deputy bridges this gap and provides an avenue for the protection of persons without capacity and without a Lasting Power of Attorney (LPA), previously an Enduring Power of Attorney (EPA), in place. Alongside this, the Office of the Public Guardian (OPG) operates to supervise all deputies.

Appointing a lay deputy

Your deputy could still be a family member or close friend (known as a lay deputy), where the Court felt this person or persons (you can have joint appointments in some circumstances) appointment was appropriate or if you don’t have anyone suitable you could appoint a professional deputy, such as a solicitor or the local authority.

For a property and financial affairs deputy, the Court will take into account your financial circumstances and the level of your assets to see whether a professional may be better suited to the role due to their experience in dealing with such matters.

The benefits of a deputy over an attorney

The benefit of a deputy over an attorney is the level of scrutiny that there is over deputies, whether they are professional or lay. Not only must they take out a security bond (specialist insurance), their actions are overseen by the Office of the Public Guardian (OPG) and they must report to the Court of Protection annually on their expenditure, where their decisions can be called into question.

A deputy must also sign a declaration known as a COP4 ahead of the appointment to confirm that they are a responsible person (this includes disclosure of credit-related checks). This also states that they will adhere to the principles of the Mental Capacity Act 2005, including, importantly to act in your best interests and to involve you in the decision-making process where appropriate to do so.

You are therefore not kept in the dark with a professional deputy, as they are specifically obliged to seek out your wishes and feelings and assist you in making decisions about your financial future. This may not be possible in all areas, but just to make you aware that your deputy will not just be acting ‘behind closed doors’ without your knowledge.

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Deputies and attorney responsibilities

In the event that a Deputy oversteps the level of their responsibility, the OPG has the power to apply to the Court for their discharge and the new deputy will often be tasked with considering pursuing legal action where there has been financial loss to you.

There is no such safety net in place for an attorney, and they are (currently) not monitored closely unless a third party raises a concern about their actions, whereupon the OPG may make an application for a deputy to be appointed and the LPA revoked. However, any misappropriation of your money or negligent actions may not be recoverable, or certainly not without action through a civil Court case.

Whilst it is fundamentally important that you chose an attorney who you will trust to act in your best interests and use your money appropriately, once you are mentally incapacitated you may be unable able to identify any issues and would be reliant on a third party raising a concern on your behalf.

So the bottom line is that whilst your legal advisor will recommend LPAs to you, and please do think carefully about who you appoint as your attorney, in the event that you ever have a Deputy appointed for you, please be reassured that they are closely monitored whether they are a professional (solicitor or local authority) or lay (family member or close friend) deputy and will work with the Court to meet your needs.

Do you need a deputy? Call today. 

Jackson Lees Court of Protection

For help understanding Court of Protection rules, as well as practical guidance once a Deputy has been appointed, call Jackson Lees on 0151 282 1700 and one of our Liverpool Solicitors or Wirral Solicitors will be in touch. We will assess all aspects of your case in order to give you the most relevant, useful feedback possible.

Please click here for a callback or message us your enquiry.