What's the Difference between a Deputy and an Attorney?

Kayleigh Smith
Author:
Kayleigh Smith
Associate Solicitor, Court of Protection
Date:
10/08/2021

Deputies and Attorneys are appointed to make decisions on behalf of someone.

The main difference is that an Attorney is appointed by an individual who still has capacity, while a Deputy is appointed by the Court of Protection for an individual who has already lost capacity.

When we talk about someone losing capacity, this means they don’t have the ability to make decisions for themselves. This is usually because of an illness or condition that they were born with or developed in later life, such as dementia or Alzheimer’s.

Applying for a Lasting Power of Attorney or Court of Protection Deputyship Order gives someone the legal right to manage someone’s affairs and make decisions for them. It’s a big responsibility and it’s important to put something in place if you’re worried about a loved one’s capacity.

If you’d like advice about applying for a Deputyship, get in touch with our Court of Protection Solicitors for free initial legal advice.

Call us on 08002605010 or request a callback and we will help you.

What is an Attorney?

If you’re over the age of 18 and you have the capacity to make your own decisions, you can choose to make a Lasting Power of Attorney, to appoint someone to manage your affairs on your behalf.

You can choose for your Attorney to take on this role straight away or you can specify in the document when you’d like them to start acting as your Attorney. For example, only when you lose the capacity to make your own decisions.

You can also include specific instructions for your Attorney and any preferences you have for how they manage your affairs.

No one can predict what’s going to happen in the future, so making a Lasting Power of Attorney can give you peace of mind knowing you’ll be taken care of if you can no longer make decisions for yourself.

What is a Deputy?

A Deputy is appointed by the Court of Protection to make decisions on behalf on an individual who lacks the capacity to make them themselves. Unlike someone appointing an Attorney, a Deputy has to be appointed by the Court, and can only be applied for once the individual has already lost capacity.

There are two types of decisions that the Court of Protection will make:

      • Personal Welfare – The Court of Protection will make a decision relating to someone’s health and personal welfare, including treatment.
      • Property and Financial Affairs Deputyship – Gives you the authority to pay their bills, sell their property and get their pension.

The Court will make a decision after confirming that the individual does in fact lack capacity through a capacity assessment. Evidence of this assessment should be submitted along with the Deputyship application.

Who can Apply to be a Deputy?

A Deputy will usually be a close friend or family member but it can also be a professional such as a Solicitor or Accountant.

Deputies have to be aged 18 or over to apply and the Court can choose to appoint more than one Deputy for the same person (known as Joint Deputyship).

One appointed, a Deputy must follow the terms of the Deputyship Order and any instructions given by the Court of Protection. They’re also legally obliged to report to the Office of the Public Guardian on a yearly basis, to show how much has been spent that year and explaining any decisions that they have made.

Deputy and Attorney Responsibilities

Deputies and Attorneys can make any decisions on behalf of the person who lacks capacity but usually they’re related to their finances and welfare.

This can include:

        • Collecting and organising their income and benefits
        • Making decisions about any medical treatment they may need
        • Selling assets such as their belongings or property to pay for care home fees
        • Dealing with a compensation award
        • Deciding where they live e.g. if they’d be more comfortable in a care home

Attorneys and Deputies have a duty to act in the best interests of the person under their care at all times and to consider their welfare when making decisions for them.

Help with a Deputyship Application

The application process can feel daunting and you might be worried about your application being delayed or rejected if it’s not completed properly. Our Court of Protection Solicitors can handle the entire Deputyship application process for you, and make sure that all the forms and assessments are accurate and submitted on time.

Depending on the circumstances, you might need a professional Deputy to be appointed instead. We can advise you on this and help you pick the best option for you and your family.

For free legal advice call our Court of Protection Solicitors

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