Attorneys and Deputies are people appointed to act on another person’s behalf (often referred to as the ‘donor’) when that person is no longer able to make decisions on their own. Those decisions can involve the donor’s health and welfare, their property and finances or both. But what exactly is an attorney and a deputy what is difference between an attorney and a deputy?
Attorneys v Deputies
The concept of an Attorney and a Deputy are similar – both are appointed on the donor’s behalf to assist them when the donor does not have capacity to make decisions themselves. However, there are differences between the two roles.
An Attorney is chosen by the donor when they have the capacity to decide who they want to act for them. An Attorney can then step if the donor loses capacity. Attorneys are appointed under either a document called an Enduring Power of Attorney (EPA) or since 1 October 2007, a Lasting Power of Attorney (LPA).
A Deputy is appointed by the Court of Protection. This is a specialist Court who deals with people who do not have capacity. A Deputy is appointed when a person is not able to make the decision themselves – either because they never had capacity to make that decision or because they have lost the ability to do so.
There are also some difference between the powers that an Attorney and a Deputy have, although their overriding objective is the same. Ultimately, Attorneys and Deputies have to act in the best interests of the donor. This is why family members are often appointed as Attorneys or Deputies as they are more likely to know what is in the donor’s best interests. Despite this, disputes can and do arise. This can upsetting for everyone involved, particularly at a time when they may feel that the donor is already vulnerable.
Every situation is different, and no two disputes are the same, although we often see some common themes in those disputes.
Disputes about who is appointed
Sometimes the hardest decision is who should be appointed as a person’s Deputy or Attorney. The donor is free to choose who they want to be their Attorney, but family members, friends or trusted professionals, may all have their own views as to who should be appointed. This may cause tension. They may be concerned about a proposed Attorney or Deputy’s intentions and whether they will act in the donor’s best interest.
Disputes between Attorneys and Deputies
Often a person will appoint more than one person to act as their Attorney. Usually a single Deputy is appointed, but it is possible to have more than one.
Sometimes Attorneys are each given the power by the donor to make decisions on their own, but often the donor’s wish is that the Attorneys make decisions jointly. This means they have to agree on every decision that is made. Disputes can then arise between the Attorneys as they may disagree or have different views on what is best for the donor. This may make it impossible for them to work together or to come to a decision.
Concerns about an Attorney’s or Deputy’s behaviour
There may be concerns about their behaviour, either from a family member or friend of the donor or from a co-Attorney/Deputy. They may suspect that the Attorney or Deputy is not acting in the donor’s best interests.
There may be concerns about the decisions that have been made about the donor’s health or their welfare, for example which care home they should move to, or what medical treatment they should receive. Alternatively, there may be concerns about how the Attorney or Deputy is handling the donor’s finances or property for example, whether they are investing it properly, what the money is being spent on and gifts which are being made by the Attorney or Deputy with the donor’s assets or money.
More seriously, there may be suspicions of financial abuse by the Attorney or suspicions that the donor’s money isn’t being used for their own benefit, for example if the Attorney or Deputy is using the donor’s money as if it was their own.
What can be done if there is a dispute with an Attorney or Deputy?
These disputes are not unusual. We are seeing a rise in them, perhaps because more people are being appointed as an Attorney or Deputy.
There are things that can be done to resolve disputes.
- Attorneys can be removed by the donor themselves if they still have capacity and they no longer want them to act. A neutral or independent person can be appointed in their place.
- Complaints can be made to the Office of Public Guardian (OPG) who act as the watchdog for Attorneys and Deputies and they can investigate any allegations about improper behaviour or conduct by an Attorney or Deputy.
- If all else fails, Court proceedings can be issued for an Attorney or Deputies’ removal through the Court of Protection. Though ideally matters would be resolved prior to reaching a final hearing. We would often propose the use of mediation as a way to resolve matters outside the Court with the agreement of all of the parties. It is often very successful and can help to preserve family relations.
Whatever the concerns, it is always best to take legal advice from lawyers who specialise in this type of work as it is very complex. We will be able to talk through your concerns and discuss the best way forward for you and your situation, whether you have concerns about an Attorney or Deputy or are acting as one and are facing complaints from other family members about your handling of the matter.
Lasting Power of Attorney and Deputy Dispute FAQs
A lasting power of attorney refers to a process whereby you appoint someone to manage your affairs on your behalf. This is done through signing a document which details all the powers the attorney will have. These usually fall into two categories: health and welfare affairs, and financial affairs, which is the more common of the two.
A deputy is different in that it refers to someone who is appointed when you no longer have the mental capacity to make decisions. If you haven’t got a lasting power of attorney in place, and are not able to cope with appointing one, then a deputy can be chosen to help you with your affairs.
They manage affairs of those who have elected them, and make decisions on their behalf. Some agreements have restrictions within them that limits what the lasting power of attorney can and can not do. It is worth noting that once you have drafted and signed the lasting power of attorney document or the deputies orders, it applies immediately, unless you have put a restriction on the powers of your lasting power of attorney or deputy to begin only when you lose mental capacity. This is something you will be able to discuss with your lawyer when putting together the agreement.
If you are alarmed that either the lasting power of attorney or deputy isn’t doing their job properly, you can report the matter to the Office of the Public Guardian by writing to them with your concerns, and they may carry out an investigation if they deem it fit. Alternatively you may wish to take legal action which could result in the matter going to court. It is important you take the correct steps in resolving the matter, and our lawyers can offer you more advice on this.
You may have to go to court if proceedings are issued and if the matter can not be resolved outside of the courtroom. However this is unlikely as the majority of these cases settle before getting to the court stage. Therefore, in theory you may have to, but in reality it is not likely.
Depending on the circumstances of the case, the costs vary. Most cases settle before court proceedings, and we can discuss with you the likely costs involved and the risks in bringing a legal dispute. Some cases can be very costly, but it is important to note that in cases involving property and assets, usually the legal costs are paid for from the donor’s money, whereas with health and welfare cases, the starting point is that each party bears their own costs.