There has been a lot in the news recently about which is best, a Lasting Power of Attorney or The Court of Protection.
To answer that question, you need to understand a little about each.
What is a Lasting Power of Attorney?
A Lasting Power of Attorney is a document that you sign in advance to appoint a person (or people) that you choose and trust to make decisions on your behalf if you can’t make them yourself (perhaps due to accident or illness). There are two types of Power of Attorney, one for Property & Finance decisions and one for Health & Welfare decisions. The person that you choose then has a legal responsibility to make decisions that are in your best interests.
If you become unable to make your own decisions, your Attorney is trusted to make decisions for you and in your best interests. There is generally no ongoing Court involvement.
If someone feels that decisions are being made that are not in your best interests they can report their concerns to the Office of The Public Guardian to investigate.
What is the cost of making a Power of Attorney?
As with any service, costs will vary. Our costs for preparing Lasting Powers of Attorney are:
- £300, plus vat, for a single Lasting Power of Attorney; or
- £425, plus vat, for a pair of Lasting Powers of Attorney (i.e. one for Finance decisions and one for Health decisions).
A Power of Attorney must be registered before it can be used. The Court of Protection charge a registration fee of £82 for each power of attorney (this registration fee is reduced or waived in certain circumstances).
Are there ongoing costs with a Power of Attorney?
There are usually no ongoing costs once a Power of Attorney has been registered.
What is the Court of Protection
If you lose mental capacity (and don’t have a Lasting Power of Attorney) the Court of Protection can appoint someone to act as your ‘Deputy’. Again, there are two types of Deputy, one for Property & Finance decisions and one for Health & Welfare decisions.
Anyone who meets the court criteria can apply to be your deputy (although this is often a relative). If their application is successful, they will receive an order from the Court telling them what they can and can’t do. Again, they must always act in your best interests. However, they must also prepare a report for the court each year containing all of their decisions and transactions, such as paying bills etc.
Your Deputy will be supervised by the Office of The Public Guardian and may be visited by a Court of Protection visitor to check that they understand their duties and are carrying out those duties properly.
What does it cost to have a Court of Protection Deputy?
The initial costs of a Court of Protection Deputy are:
- £385 application fee for a single Deputy; or
- £800 application fee for a pair of Deputies (i.e. one for Finance & one for Health).
- £500 if the court decides that your case needs a hearing.
- £100 assessment fee if your Deputy has not been a Deputy before.
- A ‘security bond’ if your Deputy is managing your finances.
Are there ongoing costs with the Court of Protection?
The ongoing costs of a Court of Protection Deputy are:
- £320 a year for general supervision by the court; or
- £35 each year for minimal supervision (if your Deputy is managing less than £21,000)
As with a Lasting Power of Attorney, some or all of the court fees may be waived or reduced in certain circumstances – full details of exemptions can be found on the Court of Protection website.
Which is best?
For some the reduced cost, reduced administration and freedom to choose the person that they know and trust to make their decisions is important. For those people, a Power of Attorney might be best.
For others, particularly those without someone that they know and trust, having the Court involved in choosing and checking the person who is making their decisions and reviewing that person’s decisions every year, is worth the additional paperwork and cost. For those people, the Court of Protection might be best.
Whatever your personal circumstances or preferences, it is sensible to discuss any queries and concerns that you have with a specialist rather than leaving it to chance.
For more information on Lasting Powers of Attorney or Court of Protection please visit our website or contact a member of our Wills, Trusts and Probate Department. Alternatively, you can contact me directly at email@example.com
Hinckley call us on 01455 639 900.
Leicester call us on 0116 254 8871.
Market Harborough call us on 01858 467 181.