Who makes the decisions when I can't? Lasting Power of Attorney and Deputyship Explained.

In this episode, Katie Broadfield and Ella from our succession team sit down to tackle a crucial but often misunderstood area of law: Deputyships and Lasting Powers of Attorney (LPAs). 

Many people believe that if they lose the ability to make decisions, their spouse or "next of kin" will automatically be able to step in and manage their finances or healthcare. Unfortunately, in legal terms, "next of kin" holds no authority. Katie and Ella break down exactly what happens when capacity is lost without an LPA in place, explaining the daunting, complex, and sometimes lengthy process of applying for a deputyship through the Court of Protection. Whether you are planning for your own future, navigating a sudden accident, or caring for a child approaching adulthood who lacks capacity, this episode provides essential, jargon-free guidance to help you protect your loved ones. 

What to Expect in This Episode:

• What is a Deputyship? The presenters explain that a deputyship is a court order granting authority to manage the affairs of someone who has lost the mental capacity to do it themselves. 
• Lasting Power of Attorney (LPA) vs. Deputyship: The episode highlights the key difference: an LPA must be made while you still have capacity, allowing you to choose who makes decisions for you, whereas a deputyship is required when it is already too late to make an LPA. 
• When is a Deputyship Needed? Ella details that deputyships are often needed following a dementia diagnosis, an unexpected accident, or for young adults who have never had capacity. 
• The "Next of Kin" Myth: Katie and Ella discuss the common misconception that spouses or relatives can automatically manage affairs without legal authority, warning listeners that they cannot. 
• The Application Process and Timelines: The complex process of applying to the Court of Protection is broken down, including the extensive financial forms, the requirement for a recent capacity assessment, and the reality that obtaining an order can take up to 12 months. 
• Professional Deputies: Katie discusses her role as a professional deputy, explaining that sometimes there is no suitable family member to step in, or relatives simply do not want the onerous responsibility of managing the accounts and reports required by the Office of the Public Guardian. 

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Disclaimer: This podcast provides general information and does not constitute legal advice. Timelines and regulations are subject to change.

Transcript

SPEAKER_02 0:01

This is Head Notes, a podcast from Whitehead Moncton. Coming up on this episode.

SPEAKER_05 0:08

A deputy ship is a court order which gives somebody authority to manage the affairs of somebody else when they've lost the mental capacity to do it themselves.

SPEAKER_01 0:18

If you receive a diagnosis of dementia, for example, it could also be an accident, something unexpected, so you haven't got round to making a lasting power of attorney yet, and then something happens out of the blue. Somebody might need a deputy ship in those circumstances. If you have a child and that child has never had capacity or has lost capacity at some point during their childhood, you as their parent usually would make those decisions about their finances or about their health and welfare. But as they approach adulthood, you might want to start thinking about what's going to change? How does the legal authority shift and how are you going to cope with that?

SPEAKER_05 0:49

Without a legal authority, no relative has any rights to manage anyone's affairs.

SPEAKER_01 0:55

Next of kin doesn't mean anything.

SPEAKER_02 1:09

This is Head Notes. A podcast from Whitehead Moncton.

SPEAKER_04 1:15

Law doesn't have to be complicated, it just needs to be clear. We're here to help you see law and lawyers differently. This podcast brings you the latest developments in law. From business challenges to family matters. Made easy to understand without the jargon. We are changing the way you see lawyers. This is HeadNotes by Whitehead Moncton. Legal excellence, tailored to you.

SPEAKER_00 1:42

How often do you ever stop and think to yourself, if something were to happen to me and I suddenly find myself in a place where I cannot make my own decisions anymore, who will look after things on my behalf? Who will manage my money? Or even make decisions about my health and do so legally? The truth is, most of us assume that this falls on your next of kin by default. But, as Ella just explained in the intro, from a legal standpoint, this is far from the truth. So how does it all work? On this week's episode of the Head Notes Podcast, Whitehead Monktons, Katie Broadfield, and Ella Beck are stepping up to the mics to tell us about lasting power of attorney and deputy ships. What they are, how it differs, and why it's a great idea to have a lasting power of attorney in place to make things easier should the unexpected happen. Before we jump into the episode, just a reminder: you can also watch the podcast now over on our YouTube channel. Just search Whitehead Moncton and find our HeadNotes podcast there. Finally, please remember that this podcast provides general information and does not constitute legal advice. Time to bring in Katie and Ella.

SPEAKER_02 2:56

This is HeadNotes, a podcast from Whitehead Moncton.

SPEAKER_05 3:00

Hello, welcome to HeadNotes Podcast from Whitehead Moncton. I'm Katie Broadfield. I'm a director of Whitehead Moncton and a solicitor in the succession team. I also act as a professional deputy, and I'm here with Ella to talk about what a deputyship is.

SPEAKER_01 3:17

Hi Ella. Hello, my name's Ella. I'm a solicitor in our succession team, and I deal with management of our deputy ship clients' day-to-day affairs. I also take instructions and deal with applications for deputy ships for both professionals and normal people.

SPEAKER_05 3:32

So I guess really what we should do is try and explain what a deputy ship is. We know what it is, we deal with it every day. Shall I try and explain what the word means? Because people might not have even heard of it, they may have no idea what we're talking about. A deputy ship is a court order which gives somebody authority to manage the affairs of somebody else when they've lost the mental capacity to do it themselves. So you might have come across something like a lasting power of attorney, but a deputy ship is needed if there's no lasting power of attorney. Ella, do you want to talk about what a lasting power of attorney is for a bit first?

SPEAKER_01 4:08

Yeah, so a lasting power of attorney is a document that you can create whilst you have capacity to nominate people to act as your attorneys so they can make decisions for you in the event that you're unable, whether it be financial decisions or health and welfare decisions. So that's kind of in a nutshell what they do. But the point here is that you make it and you choose who you appoint.

SPEAKER_05 4:28

Yeah, and that's really important because you have to make a lasting power of attorney when you have capacity, you have to be able to sign the document, make the decision about who you're appointing. And we do a lot of lasting powers of attorney at Whitehead Moncton, helping clients choose the people that they want to manage their affairs in the future. A deputy ship is what you do if you haven't made a lasting power of attorney. So if you've lost your mental capacity, it's too late. You can't make a lasting power of attorney then. So somebody might have to apply to be your deputy ship. Do you want to talk about times when a deputy ship order is needed?

SPEAKER_01 5:04

Yeah, so a deputy ship order might be needed if you receive a diagnosis of dementia, for example, and you lose the ability to make decisions and manage your own finances. As we said before, you haven't made a lasting power of attorney and somebody needs to step in and take over and start managing your affairs. It could also be an accident, something unexpected, so you haven't got round to making a lasting power of attorney yet, and then something happens out of the blue. Somebody might need a deputy ship in those circumstances. And the last occasion where it comes up somewhat frequently is if you have a child and that child has never had capacity or has lost capacity at some point during their childhood, you, as their parent, usually would make those decisions about their finances or about their health and welfare. But as they approach adulthood, you might want to start thinking about what's going to change, how does the legal authority shift, and how are you going to cope with that? And that's where a deputy ship is probably going to come in and start helping you.

SPEAKER_05 5:57

That's a really good point, actually, because I think commonly people think that things like lasting powers of attorney or deputy ships are only to do with elderly clients. But we have a lot of much younger clients that need help, or as you say, children that have never had capacity to make their own decisions. I think something you mentioned there is about the different types of decisions that might be made. So one type of deputy is for your property and financial affairs, and again, you can make a lasting power of attorney for your property and financial affairs, but also you might have a health and welfare power of attorney or a health and welfare deputy order. It's quite rare to get a health and welfare deputy order, isn't it?

SPEAKER_01 6:34

Yeah, the court don't like to give out authority for you to make decisions about somebody's health and welfare. It's quite a personal thing. So if you make a lasting power of attorney and you choose somebody to make those decisions, that's your prerogative, you're making that choice. The court don't like to step in and make that choice for you. So on that basis, they sometimes make specific orders about specific health and welfare decisions as and when things crop up. The other occasion where they're slightly more forgiving and they do allow you to have the full order is, as I say, for parents with young adults where they've kind of never had capacity, so that the normal line of healthcare and treatment can continue. But yeah, slightly less common, but it is possible in certain circumstances.

SPEAKER_05 7:15

Yeah, and that's again another reason why it's really important if you can to make lasting powers of attorney, because then you can choose who you want to make your health and welfare decisions for you in the future. Um I think hopefully we've explained what the word debtorship means. I suppose we should talk about the process because sort of that can be quite daunting, can't it? If we've got clients that come in and they may they may know that they need to help somebody, they might have a relative that's lost capacity, so we can help talk through the process of how we actually get to a deputy ship order, can't we?

SPEAKER_01 7:47

Yeah, there's quite a few steps involved in making an application for deputy ship. There's quite a lot of forms to fill out, as I say, it's very, very daunting, so it's something that you can get advice on if you'd like to. Um, the kind of key elements of an application is you have to decide who's going to make the application and whether they are the proposed deputy, are they the person that's going to step in and manage finances or health decisions? You then have to do another form which details the financial information for the financial applications or about health and welfare information if we go the other way. That's quite intense as a form. There's lots of information that they ask for, and you have to provide it to the best of your ability. So it covers all assets, whether it be a bank account, investments, property, whether they have an interest in an estate, they might be due compensation for an accident that wasn't their fault. What income do they receive? Benefits, things like that. So you have to make sure that you're giving the court an accurate record of all of that information.

SPEAKER_05 8:42

And all of this information is stuff it might be quite difficult to find because it might be somebody who, you know, a relative, but not somebody you live with, or you might not know where the paperwork is. And again, it can be quite difficult for somebody to collect all this information that you have to give to the court, can't it?

SPEAKER_01 8:58

Yeah, and you're in a bit of a catch-22, really, because you're making the application to get the authority to manage the finances. So without the authority, you not the institutions might not give you what you need. So it can be a little bit tricky to navigate. The other big component is a capacity assessment. So the court will insist on a recent capacity assessment, which evidences that the person who we're making this application about doesn't have capacity to make the decisions for themselves. And if the capacity assessment is not clear or not recent, the court will not grant the order.

SPEAKER_05 9:30

And that's that's really important because a debtorship order is only when somebody's lost capacity. You you have to prove that they can't carry on managing their own affairs and it's too late to make a lasting power of attorney. I think commonly what we get questions about sometimes is next of kin or somebody's spouse being able to just continue, just look after somebody. Um but that's not actually the case, is it? Because without a legal authority, no relative has any rights to manage anyone's affairs. Even a spouse, husband and wife will have to get authority if one of them's lost capacity and they haven't made powers of attorney.

SPEAKER_01 10:07

Yeah, it's a very common misconception. Um, the way I explain it to people is in legal land, next of kin doesn't mean anything, it doesn't hold any authority. We use it a lot in everyday life, people use it a lot in everyday life. You think it means something and it has some standing, and unfortunately it doesn't, but lots of people don't realise that until it's too late. So absolutely make lasting powers of attorney if you can, because assuming that your wife or children can deal with things without it is incorrect, and they will find themselves going down the route of deputyship instead. And as we say, that is a big process, takes time.

SPEAKER_05 10:41

It does, and even spouses may have to be appointed as the deputy, they they can't just act under sort of just because they're they're married to somebody who's lacks capacity. They they may need to go down the deputieship process. You talked about some of the forms that are needed. So once you've collected all of the information in, then you submit the application to the Court of Protection. It's the Court of Protection that manage the process of issuing deputy ship orders. What happens then? What happens once the application's gone to the court?

SPEAKER_01 11:11

Usually you wait. And you wait and you wait a little bit more. Um the court are a little bit hit or miss. So sometimes you can get an order quite quickly, sometimes you can wait quite a long time. What sort of time frame are we talking about? Anything up to 12 months in you know, a bad case scenario, but it depends on the complexity of the application that you're making. Um, so it's just something to consider. You need to think about timelines when you're at the beginning of the process.

SPEAKER_05 11:44

Exactly, because it might be that you don't have access to bank accounts, you can't pay bills, you can't pay care fees. It can be really difficult in that time. And even when you start the process, as Ella said, it can take easily a year to get a deputy ship order. Um I mentioned at the beginning that I am a professional deputy, so we've talked about family members managing affairs for relatives, but it could be a case, and we see this a lot with our clients, which is why they come to us, that there's nobody suitable or there's no one at all that can act as a deputy, so it might be that it's a professional that needs to be appointed as deputy. And we we manage a lot of those sorts of cases, don't we, Ellie?

SPEAKER_01 12:22

Yeah, we do, and sometimes it's not even there's nobody appropriate, it's just that you might not want to. It's quite a big job to take on somebody's affairs in that way, and you might be looking at applying for your spouse, but if you're of a similar age and you're you know thinking this is going to be quite onerous, you might just not want the responsibility, and that's absolutely fine. It happens all the time, and as I say, we're here to step in, we can act as professionals. And we're also happy to offer ad hoc advice. So if you are a deputy or an attorney and you're not really sure how to navigate the next steps, you can come and see us, and we're happy to talk through the things you need to be thinking about and how you're going to work through all of those things.

SPEAKER_05 13:00

Yeah, because the Court of Protection issue the deputy orders, and then deputies do have responsibilities to prepare reports and keep very good accounts, make sure all the decisions they're making for somebody are in that person's best interests. And it's the office of the public guardian that supervise and regulate anybody acting as a deputy, whether it's a family member or a professional, so we have to make sure that we are complying with all the responsibilities as professional deputies. And if you as a as a relative or a friend are a deputy, you have to make sure you're keeping those accounts, submitting reports, and you know, it is, as Ella says, quite onerous, so it's quite a responsibility to be a deputy for somebody. Attorneys don't have quite the same level of supervision, do they? Scrutiny by the courts.

SPEAKER_01 13:49

No, I think the theory is because you choose your attorneys, they're not held to that they're still held to a high standard, but they're not supervised in the same way. So unless they do something really, really wrong, um, and it gets taken to the Office of the Public Guardian and brought to their attention, in which case they're probably going to do an investigation because they want to make sure that whoever is acting for you is acting in your best interests. Um, so yeah, slightly different supervision process in that respect. Deputy ships definitely have to provide a lot more evidence and say those accounts are the really big job every year, making sure that you're submitting them and you're submitting them right.

SPEAKER_05 14:25

Yes, and again, if you are able to make lasting powers of attorney, we think that is usually the best the best course of action because then you've chosen your attorneys, you've made it much easier for them to deal with your affairs in the future. As long as you've got people that you trust, then you're not giving up your ability to look after your affairs while you're able to. You've just put things in place for the future. If you lose your capacity, you know that somebody can step in and help you. If you haven't done that, or if you haven't managed to do that and you do lose your capacity, then there is this framework of deputy ships that you can use. But as we've hopefully explained in this podcast, it can be quite slow and quite onerous a process to go through. So definitely the message is to make lasting powers of attorney if you can. But if you can't, then the court can step in and appoint a deputy. Okay, hopefully we've helped explain what deputy ships are. Um, and yeah, if you've got any questions, then please contact Whitehead Moncton.

SPEAKER_03 15:23

You've been listening to head notes from Whitehead Moncton. If today's episode sparked questions about your business or personal matters, our team is here to help. For more insights, resources, or to speak with one of our solicitors, visit www.whitehead monkton.uk, and