Conservatorship vs Deputyship vs Lasting Power of Attorney
What is the meaning of Conservatorship?
A conservatorship is a legal arrangement that exists in some states in the U.S, such as California. It is when a court decides that someone is incapable of making their own decisions and appoints an individual to act on their behalf. The rules around what makes someone unable to make their own decisions vary from state to state - each with its own nuanced laws and regulations. Under a conservatorship, the individual that is appointed to act on their behalf is called a guardian. The guardian can have control over financial affairs, and day-to-day life decisions (subject to any stipulations that the court makes). Depending on the state and the particular local rules conservatorships tend to last for long periods of time (such as a year), or without a formal end date.
Most often conservatorships are used to assist and protect people with dementia or other severe mental illness but they have come under scrutiny in recent years with allegations that they give too much power to guardians, that they are difficult to undo, leaving them open to abuse.
Does conservatorship exist in the UK?
Conservatorship is a term used in some states in the U.S.A. In England and Wales we have something similar, but it’s called Deputyship. In Scotland and Northern Ireland it’s called Guardianship.
What is Deputyship?
A Deputyship is a legal arrangement that is put in place when someone lacks mental capacity to make decisions for themselves due to injury, illness, etc. The court will appoint a Deputy to make decisions on their behalf.
Types of Deputyships
There are two types of Deputyship:
- Property and Financial Affairs Deputy - giving the Deputy the authority to do things like pay the person’s bills or organise their pension.
- Personal Welfare Deputy - giving the Deputy the authority to make decisions about medical treatment and how someone is looked after.
How do you apply for Deputyship?
The person wishing to be the Deputy and make decisions on behalf of someone else has to apply to the Court of Protection, you can either apply to be Property & Financial Affairs Deputy, Personal Welfare Deputy, or both.
The Court of Protection doesn’t just appoint you deputy because you applied.
The Court of Protection will check:
- Whether the person needs a deputy or some other kind of help
- There are no objections to the appointment
If they are happy with the above then they will give the Deputy legal authority to make decisions on behalf of the person that has lost mental capacity.
Who can and who can’t be appointed a Deputy:
Anyone over 18 can apply to be a deputy, but usually, they are close relatives or friends of the person who needs help making decisions.
Some people are paid to act as deputies, for example, accountants, solicitors or representatives of the local authority.
The Court of Protection can appoint a specialist deputy (called a ‘panel deputy’) from a list of approved law firms and charities if no one else is available.
For the property and affairs deputy, the court looks to see if the person applying to be a deputy has the skills to make financial decisions for someone else.
The court can also appoint 2 or more deputies for the same person, depending on needs.
You do not need to be a deputy if you’re just looking after someone’s benefits. Apply to become an appointee instead.
Need more information?
You can call our legal team at 020 4525 3605 for advice.
When there’s more than one deputy
If you want more than one Deputy to be responsible for the person's affairs. You have to apply proposing two Deputies, and you must tell the court when you apply whether you’ll be applying as:
- Jointly - all Deputies must agree on all decisions.
- Jointly and severally - Deputies can make decisions together or on their own.
What happens when you become a deputy?
If your application to become a Deputy is successful, you’ll get a court order saying what you can and cannot do.
Once you become a Deputy, you must send an annual report to the Office of the Public Guardian each year explaining the decisions you’ve made. This may be subject to yearly fees.
How long does the deputyship last?
The deputyship continues until the court order is changed, cancelled, or expires based on a set date given in the court order.
Other ways to make decisions for someone:
You can apply to the Court of Protection for a one-off order if you’re looking to make a single important decision for someone else.
If the person already has a Lasting Power of Attorney (LPA) or Enduring Power of Attorney (EPA), they don’t usually need a Deputy. Check if they have an LPA or EPA.
What is the difference between Deputyship vs Lasting Power of Attorney?
A Deputyship is a court order that is granted when someone lacks mental capacity and needs someone to make decisions on their behalf right now. Whereas a Lasting Power of Attorney (LPA) is a legal document that lets you (the ‘donor’) appoint one or more people (known as ‘Attorneys’) to help you make decisions or to make decisions on your behalf if you lose mental capacity in the future. LPA is much more preemptive, and removes lots of the stress, costs and worry around having to seek Deputyship if something were to happen unexpectedly.
A Lasting Power of Attorney gives you the power to choose someone you trust to make decisions on your behalf if you were to have an accident or an illness and couldn’t make your own decisions (because you lacked mental capacity). It is also a chance to communicate your wishes ahead of time to improve the chances of decisions reflecting your wishes and wants.
Lasting Power of Attorney is used in England and Wales. There’s a different process in Scotland and Northern Ireland.
Generally, it’s recommended that most people over the age of 25 should have a Lasting Power of Attorney in place.
Not sure if you actually need a Lasting Power of Attorney? Take our quiz here.
Who can appoint a Lasting Power of Attorney?
Anyone over 18 who has mental capacity - the ability to make your own decisions - can appoint an LPA.
What types of Lasting Power of Attorneys are available?
Just like the deputyship, there are 2 types:
- Health and Welfare
- Property and Financial Affairs
You can choose to appoint a Lasting Power of Attorney for one or both of these. It also means you can choose different people for each area to make decisions on your behalf if you’re ever not able to.
A Health & Welfare LPA can only be used if someone has lost their mental capacity as these decisions are deemed far more personal and it is far better for the individual to decide for themselves, if at all possible.
Take our quiz to see if you need a Lasting Power of Attorney here.
Know you need one? Start your application here and get 25% off today
