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What’s the Difference Between an Attorney and a Deputy?

Posted on 24th October 2023 in Probate & Wills, Later Life Planning

Posted by

Sarah Phillips

Associate & Chartered Legal Executive
What’s the Difference Between an Attorney and a Deputy?

The day-to-day steps taken by attorneys and deputies are quite similar – but there are some important differences. This question-and-answer document may help to answer some of the more frequent questions people have. 

1.    How is an attorney appointed versus a deputy?

An attorney is appointed, under a Lasting Power of Attorney (or other similar document) by a person who can make the decision in relation to who should assist them with their affairs. A deputy, on the other hand, is appointed by the Court of Protection on behalf of a person who cannot make this type of decision for themselves. 

2.    So, if I do not appoint an attorney myself, does that mean I may not get a choice in who assists me with my affairs?

The Court of Protection will make the decision as to who should be appointed as a person’s deputy. This decision is made based on an application made by the proposed deputy which should contained detailed information regarding the person they want to become deputy for. The court will then decide whether it is in a person’s best interests for a deputy to be appointed and who that deputy should be. 

3.    What can an attorney do that a deputy can’t?

The roles of attorney and deputy are quite similar. However, what steps an attorney can take will, to a certain extent, be limited by the wishes of the person making the power of attorney document. On the other hand, a deputy will be limited in relation to their powers by the order granted by the court of protection. It can often be the case that a deputy’s powers will be more limited than an attorney’s.

4.    Do either of them have additional responsibilities?

A court appointed deputy must account to the body that supervises deputies, each year, for all payments made and received on behalf of the person they act. This requirement does not apply to attorneys – although an attorney should still keep records of the transactions they make in case they are ever asked for this information.

5.    Is there any difference in the way they make decisions? 

Both attorneys and deputies must make decisions on behalf of the person they are acting for which are in the best interests of that person. They both must have regard for the principles contained within the Mental Capacity Act 2005 and they must also follow the guidance set out in the Mental Capacity Act Code of Practice.

6.    How do I know what is right for me?

Many people prefer to plan their affairs in advance so that they avoid difficulties arising due to delays in a deputy being appointed when one becomes needed. However, there are some people who prefer to have the more detailed oversight of the Office of the Public Guardian due to the need for deputies to provide annual accounts.

How can Tozers help?

We can provide advice surrounding your needs regarding your financial affairs and we regularly assist with the preparation of power of attorney documents. We can also provide advice to you family members about deputyship applications if you decide that you do not wish to execute a power of attorney document. Contact our legal experts today.

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