Laura Brydon is a Solicitor in the Wills, Trusts & Probate Team at Gordon Brown Law Firm LLP. Here, she explains the issues that can arise by not appointing a Lasting Power of Attorney (LPA) and the costs associated with becoming an appointed Deputy.
If a person does not make a LPA and they unexpectedly lose mental capacity or the ability to deal with their own affairs, as a result of an illness for example, their family has to make an application to the Court of Protection to be appointed as the person’s Deputy/Deputies.
How long does a Deputyship
application take?
It is likely that a Deputyship application will take between six to eight months to complete due to several stages of paperwork that are required to be submitted. Unfortunately, loss of capacity or ability often happens suddenly and so family members are required to act quickly.
Without a Deputyship Order a family member will not be granted access to the person’s bank account and will struggle to deal with simple matters such as utility bills. As well as taking time this can lead to further financial burdens for the family members until they are granted Deputyship.
When making LPAs a person can choose to hand over responsibility in respect of their financial and legal affairs as well as health and welfare but this is not the same for Deputy applications. The Court of Protection is reluctant to issue Deputyship Orders in respect of a person’s health and welfare unless it is absolutely necessary to do so. As a result, a Deputy’s powers in relation to a person’s health and welfare are quite basic and often limited.
How much does a Deputyship
application cost?
As well as taking potentially six to eight months for an application to be completed and an Order issued by the Court of Protection appointing any Deputies, there are several fees that must be paid. These costs include legal fees (£850+VAT), a Court of Protection Commencement Fee (£400), a Doctor’s Assessment of Capacity Fee (around £100) and a Surety/Guarantee Bond Premium (around £100 paid annually).
In theory these costs are payable by the person that the Deputyship application is for. However, in many cases no one has the authority to access the person’s bank accounts until a Deputyship Order has been officially issued. Often this results in the person applying for the Deputyship paying the costs themselves on the understanding that they will be reimbursed once they are granted access to the person’s bank accounts.
On top of these initial costs there are other ongoing fees. Deputies have not been chosen directly by the person they are acting for and therefore have to prove their suitability to the Court of Protection. Even once appointed they will be supervised by the Court of Protection for the remainder of their Deputyship (i.e. for the remainder of the lifetime of the person they are appointed for) and must complete an annual Deputyship Report. In addition to this, a further fee of £100 is payable at the outset to have the Deputyship formally registered on the courts’ records and an annual supervision fee of £320 must also be paid.
Many people are deterred from making a LPA because of the legal fees incurred. However, it is often the case that there are greater financial implications for not making a LPA.
For those who make LPAs while they still have capacity will have the peace of mind that their chosen Attorneys will have authority to deal with property and financial affairs, as well as health and welfare on their behalf. Moreover, because the Attorneys have been chosen by the individual, they are considered to be capable and trustworthy by the Court and they won’t need to be supervised avoiding all of the ongoing fees associated with Deputyship applications.
