Lasting Power of Attorney vs The Court of Protection

Lasting Power of Attorney v. The Court of Protection

When a loved one suddenly becomes ill, it can be very confusing as to what you should do.  We often get people coming to us, advising that they have a loved one that has been admitted to hospital and they are showing signs of suddenly losing their mental capacity.

When this happens many people and organisations fire confusing terms are you, like  “power of attorney”, “nominee”, “deputyship” “court of protection” etc.

In this article we will examine the differences between Lasting Power of Attorney and Court of Protection and some terms that go hand in hand, so you can better navigate and understand this confusing world that you may find yourself projected in to.

Lasting Power of Attorney

The first thing that most doctors, social workers and organisations will ask of you, is does your loved one have a Power of Attorney?  Unfortunately, many people don’t, as they leave it too late to organise one.

Any of these, may advise you to get a Lasting Power of Attorney, but can it be that simple? 

In a word “No”.

A Lasting Power of Attorney can only be entered into by the person who is granting the power, that is your loved one!  You cannot simply set this up on their behalf.  The person must have full mental capacity to enter into a Lasting Power of Attorney, and for many the time has come and gone and they no longer can enter into a Power of Attorney as they lack the mental capacity to do so.

But what if my loved one is deemed to have Capacity?

Then Great!! You may need a medical professional or social worker to confirm to a Solicitor that your loved one does have the requisite mental capacity to enter in to a Lasting Power of Attorney and this would need to be provided in writing by the professional to the Solicitor.  However, you cannot give instructions to the Solicitor, this has to come direct from the person themselves, unaided and without undue influence, so the Solicitor will often want to see them on their own.  If your loved one, is able to provide the Solicitor with instructions then the matter will progress and a power of attorney will be created.  Unfortunately, the power cannot be used until it has been registered with the Office of the Public Guardian and depending on their workload this registration period can be in excess of 12 weeks once the power is signed by all parties.  (during and for a couple of years after covid the registration time was in excess of 20-26 weeks).

What if my loved one does not have Capacity?  Can I still get a Power of Attorney?

No.  As stated before, your loved one has to enter in to the power themselves and to do so they must have the mental capacity to do it.

What’s my option then?

It is best to speak to a Legal Professional such as a member of the Court of Protection Team at Andrew Isaacs Law to discuss your options.  The main option is that you may have to make an application to the Court of Protection to become Deputy for your loved one.  There are other options, but these are dependent on your individual circumstances, for most people it will be to go to the Court of Protection.

What is the Court of Protection and how can they help me?

The Court of Protection is a specialist legal division that grants powers for a Deputy to use to manage their loved ones Property and Finances, when they do not have a valid Lasting Power of Attorney or Enduring Power of Attorney in place.

The Court can look at the best interest of your loved one to decide if they could benefit from someone being appointed as Deputy, and if they believe that it is then they will look at your credentials to see if you are suitable (please see our article on Lay Deputies).

Is the Court of Protection a quick and easy route?

No.  The Court of Protection has to ensure that whoever they appoint as Deputy is suitable and that it is in the person’s best interest for them to intervene in their property and financial affairs.  This therefore is a full Court application and as such takes time and can be costly.

At present the best time estimate, as long as there are no complications and disputes, to be appointed as a Deputy can take in the region of 6 months.  There are fees to get the matter to Court, which includes the cost of a capacity assessment which can be anywhere from £0.00 to £750 that a medical practitioner will charge and the initial Court Fee of £408.  Then there are fees at the end, like the Deputy Bond which is set by the Court and legal fees, as well as ongoing annual fees payable to the Court of Protection to oversee the matter.  See our other articles on the Court of Protection.

My loved one is not expected to live 6 months?

In this case it is imperative that you seek professional legal advice on your situation, as there may be other options or our specialist team may be able to fast track the matter for you, in certain circumstances.

I need help, who should I contact?

You should contact the Court of Protection Team at Andrew Isaacs Law Ltd to gain advice and insight in to your unique situation and they can advise of the best course of action for you.  Contact us on 01302 349480.

Article Dated: 21/01/2025

Article Written by our Qaiser Ahmed, Court of Protection Solicitor