LPA or Deputyship

Both LPAs and Deputyships come in two forms:

• Financial affairs / property
• Health and welfare

If you want both you have to make 2 separate applications.

So, what’s the difference between an LPA and deputyship?

It can be confusing because when you have an LPA for a person you are usually expecting to use that only when they lose capacity to make their own decisions.

An LPA is an authority given by the donor (the disabled young person in this case) to their attorney (you, probably) (or attorneys) while they have the mental capacity to make the decision to do so.  The terms of an LPA can allow the attorney to make decisions with the donor or on their behalf while they still have mental capacity to make their own decisions.  Or it can specify that the attorney can only make decisions once the donor has lost capacity.

For most of us we will be either supporting the young person to manage their financial affairs or taking over entirely while they still have the capacity to make decisions.

A Deputyship is granted by the Court of Protection to a person who applies for a deputyship to manage the affairs of another person who does not have the mental capacity to make their own decisions.  They may have lost the capacity because of illness, older age, disability or they may never have had the capacity, for example a young person with a severe learning disability.

If you have a deputyship you are the person responsible for making decisions as the young person has been deemed to lack the capacity to make their own decisions.

Having a learning disability does not mean that a person cannot make decisions for themselves – but they may be limited in the complexity of decision they can make.

Regardless of which, if either, authority you have your young person should be as involved in decision making as they are able to be.

How do I know which one to go for?

You don’t really have a choice!

For many of our young people it will be obvious whether they have capacity to grant us their authority to manage their financial and / or health affairs.  For our more able young people it may not be quite so clear.

For either authority – LPA or Deputyship – the process involves a person who has to agree that the young person has capacity to grant the authority or not.  If it’s not clear whether the young person has the capacity to grant the authority then you will need to carry out a mental capacity assessment.

For an LPA you can use a professional or a family friend (who has known the young person for over 2 years and is more than an acquaintance) to certify that the young person does have capacity.  For a deputyship it’s likely to be your GP who will certify that the young person does not have capacity.

As a parent this can be quite an informal process but ideally you should document the process and involve the person determining whether the young person has capacity or not.  The main reason for this is to protect your decision in the future should it be challenged.

Do I need either?

If a young person has the capacity to grant you an LPA and you both want this authority then go ahead.  Do have a look at the Mencap easy read guides – there is one specifically for the donor as well as guidance for potential attorneys, the certificate provider and anyone who is going to support the young person through the LPA process.

If your young person does not have the capacity to grant you an LPA and you want or need an official authority then it will have to be a deputyship.

You may not need it.  If your young person only has benefits and no other income or assets then you can manage these financial affairs as their DWP Appointee.  If they have some small amount of savings you can probably manage those as well (although not covered by the DWP Appointeeship).  However, if they have an income other than benefits or more significant assets this is a situation where you will need a financial deputyship to manage their money and assets.

So who will make decisions for my young person if I don’t have an authority?

You!  In instances where your young person does not have capacity to make the decision it will still be you – mostly.  Technically, once your young person turns 18 your parental responsibility is at an end and you no longer have an automatic right to make decisions on their behalf.  However, you won’t find anyone else trying to replace you.

All decisions made for a young person who cannot make the decision themselves must be made in their best interests.  This means that for smaller, more day to day decisions it will be you – or possibly a carer or someone from school, where relevant.  For bigger or more complex decisions it may well be a professional who makes the final decision – but only after a best interests process which should include you.  For example, a decision about where a young person will live will likely include a social worker; for a health decision, eg taking medication, it will likely include a health professional.

If your young person has the mental capacity to make the decision it remains theirs to make and you can’t override it and neither can anyone else.

Best Interests

All decisions made for a person who lacks capacity to make their own decisions must be made in their best interests.  A best interests decision involves all the relevant people and you, as the parent, are always a relevant person – you hold the history.

This doesn’t mean that you will always get the decision you want but you should always be part of the discussions.

As with everything to do with our young people building good relationships with key professionals is essential as you are more likely to be listened to when you are a known quantity and if you can manage long term relationships (not always in your control) so much the better.

I would add to that that wherever possible get yourself informed before the decision has to be made so that you can really be part of the conversation and decision making process.  Our friend Google can help with that but also talking to professionals involved and asking them to explain – this might be really helpful with medical decisions which may well involve information that you may not understand.

On a personal note, the best interests process has worked for us with professionals looking to me as the lead.  To be fair we haven’t had any complicated medical decisions to make but that shouldn’t really make a difference.

Finance and / or health?

If you are going the LPA route then the finance LPA can be used as soon as it is registered.  It’s a little different for health as you can still only make decisions on your young person’s behalf when they are unable to do so themselves.   For example, if you were in the doctor’s surgery discussing a small medical procedure it would be the young person’s decision; if the young person was sedated on the operating table and an issue arose the decision would be yours as the young person would be unable to make the decision.

A health and welfare LPA gives the attorney status when health or social services are considering possible care and treatment plans, and gives the attorney authority to decide where the person lives, with whom they are in contact, and their medical or dental treatment. It can extend to giving or refusing consent to life saving treatment.

If you are going for a deputyship although the Court can appoint a personal welfare deputy to make health and welfare decisions, in practice this is not common. This is because the law allows others to carry out care and treatment on behalf of a person who lacks capacity to consent, if they believe it is in the person’s best interests. The Court should only appoint a personal welfare deputy if there is no other least restrictive option, and it is in the person’s best interests.

LPA – how much does my young person have to get?

This is not entirely clear cut.  The Mental Capacity Act says that if they can understand the relevant information, retain the information, use it to weigh up and the communicate their decision then they have the capacity to make the decision.  They don’t have to retain the information for long – just long enough to make a decision.  But it can be difficult to ascertain whether a young person has been able to use the information to weigh up the pros and cons – or consider the consequences.

I would recommend the easy read guide for the donor from the Mencap website as your guide.  The young person has quite a few decisions to make as part of the process and if they don’t understand this guide I think you would have to question whether they really have the capacity to make the decision to grant you their authority.  This is just my opinion and you can, of course, go through it step by step and as slowly and as repetitively as needed but I do think this is a good benchmark to determine whether the young person really understands the decision the are making.

https://www.mencaptrust.org.uk/guides-lasting-power-attorney