Zoe Hodge, Senior Associate, is an experienced private client solicitor with a particular interest in Court of Protection matters. Over the coming months, Zoe will be answering some frequently asked questions to assist Attorneys and Deputies in fulfilling their duties and staying within the parameters of their authority.
What is the difference between an Attorney and a Deputy?
Attorneys are appointed in a Lasting Power of Attorney (“LPA”) before mental capacity is lost. A Deputy is appointed by the courts after mental capacity of the individual has been lost.
What should I do when I’m appointed?
The first step is to look at the document appointing you, whether that is a registered LPA or a Court Order. Check whether you are appointed alone or with other Attorneys / Deputies and if so whether your appointment is joint, which means all Attorneys have to agree on every decision or joint and several, which means that Attorneys can act independently of each other or together.
You can also choose to let them make some decisions ‘jointly’ and others ‘jointly and severally’.
Under an LPA you must have regard to the Mental Capacity Act 2005. Section 8 of the LPA sets out the five main principles you must follow.
These are:
- You must assume that the donor is mentally capable of making their own decisions until you establish otherwise.
- You must help the donor to make the decision in question and only if, after all steps to help the donor are unsuccessful, should you then make the decision for them.
- You cannot overrule a donor, even if you think they have made an unwise decision.
- You should always act in the best interests of the
- Before you act or make a decision, you should consider whether you can achieve the same purpose in a way that is less restrictive of the donor’s rights and freedoms.
You must also have regard to Section 7 of the LPA. This section allows the donor to add in ‘preferences’ which are non-binding wishes such as “I would prefer to be cared for in my own home rather than go into a residential care home” and / or ‘instructions’ which are binding such as “I must not be given any blood products due to my religious beliefs”.
If you are a Deputy, the Court Order appointing you will set out your specific powers and limitations, usually in Section 2. You should:
- Always act and make decisions in the donor’s best interests.
- Only make decisions within the scope of the Order.
- Have regard to the Mental Capacity Act 2005 – the five main principles of which are listed
It is essential you stay within the authority granted to you otherwise you may have the LPA / Order revoked by The Office of the Public Guardian, leaving your loved one without anyone with legal authority to make decisions on their behalf. The Office of the Public Guardian may also request the return of unauthorised gifts, refer the matter to the police (where necessary), or may require you to apply for retrospective approval of the Court, depending on the circumstances which are assessed on a case-by-case basis. For example, if an Attorney has gone beyond their authority but the Court would have likely given permission for the action / decision, had an application been made in advance, then the Court is likely to grant retrospective approval of that action / decision.
This is only intended to be a summary and not specific legal advice. Should you require more information or would like to speak to us, please contact Zoe Hodge, or another member of the private client team.
Note: the costs of seeking advice are likely to be recoverable from the donor’s estate.
