The difference between Power of Attorney and Deputyship

Posted: 24th October 2022

A power of attorney (POA) and a deputyship provide legal authority to a person(s) to make decisions on behalf of someone who lacks mental capacity. In Court of Protection proceedings, this person is referred to as “P”. The decisions can relate to P’s property and affairs or their health and welfare.

Although both provide the same authority, a POA deed is prepared by P prior to losing capacity, whereas the Court of Protection appoint a deputy under a Court Order when P does not have a POA in place and does not have capacity to execute a POA deed.

Power of Attorney

A POA is a deed that is executed by a donor (P) with mental capacity. It gives authority to the appointed attorney to act on their behalf if they need support in the future or lose mental capacity. If more than one attorney is appointed, they can be appointed jointly or joint and severally. Once the deed has been executed, it is then registered with the Office of Public Guardian (OPG).

The deed includes provision for a named person to be notified but does not compel notification.  There must be a certificate of capacity which is signed by someone who has known P personally for two years or who has relevant professional skills and expertise to determine capacity.

Prior to P losing capacity, an attorney for property and affairs can act so long as they have P’s consent. Attorneys for health and welfare are only authorised to act when P lacks capacity. P can set out specific terms within the deed as to what the attorneys have power to do if he/she loses capacity. The attorney must act in P’s best interests.

Deputyship Orders

If a person loses mental capacity without making a POA, then he/she will no longer be able to appoint an attorney. Where this is the case, it may be necessary to apply to the Court of Protection for a Deputyship Order to have P’s welfare or property and affairs managed by another, in their best interests. The Court of Protection only has jurisdiction over those who lack capacity by reason of an impairment to the functioning of the mind or brain.

The deputyship application must be filed with the Court of Protection together with a COP3 Capacity Assessment. The applicant must notify at least three people of the application and provide a statement of truth. The Court will assess the suitability of the proposed deputy and if the Court feels that they are competent to manage P’s welfare or property and affairs, a Deputyship Order will be made. Depending on P’s circumstances will depend on whether a lay person will be appropriate or whether a professional, such as a solicitor, will need to be appointed as deputy. If P’s estate is complex or of a significant value, it is more likely that the Court will appoint a professional deputy. More than one deputy can be appointed and if this is the case, they can be appointed jointly or joint and severely.

As protection of P’s interests, the deputy has a duty to pay a premium for a security bond. This is to protect P in the event of any negligent act by the deputy. The Court will set the security upon assessing P’s assets. The security amount will be included in the Order. The deputyship does not come into effect until the bond is in place.

The deputy is governed by the powers set out in the Mental Capacity Act 2005 and the Court is entitled, when making an Order, to place further restrictions to the general powers conferred by the Act.

Deputies are supervised by the Office of Public Guardian. The OPG have drafted the professional standards setting out clear actions and behaviours that a professional and local authority deputy must follow. The deputy must keep a record of P’s assets, income and expenditure and is required to report to the OPG annually.

What are the key distinctions?

There are some key distinctions between power of attorney and a deputyship:

For further information regarding Lasting Powers of Attorney or Deputyships please email [email protected] or call us on 0191 338 6113.