What is the difference between an Attorney, a Deputy and a Trustee?

What is the difference between an Attorney, a Deputy and a Trustee?

The differences between an Attorney, a Deputy and a Trustee are subtle but important to understand. In essence, they are all roles that allow legally appointed individuals to make decisions on behalf of others and most commonly for those in later life and those who may have lost mental capacity.

The easiest way to explain the differences between an Attorney, a Deputy and a Trustee is to look at each role in turn.

Attorneys

A Power of Attorney is a legal document whereby a person (known as the donor) appoints nominated persons (attorneys) to act on their behalf in respect of their personal affairs. The donor has to demonstrate mental capacity in order to make a Power of Attorney.

An attorney is usually a close family member, a friend, or a solicitor who acts in a professional capacity. Attorneys can be appointed to act either jointly or on their own.

If you are appointed as an attorney it is very important that you understand your legal duties as an attorney and act in accordance with the instructions and wishes of the donor as set out in the donor’s Powers of Attorney.

There are two types of Power of Attorney; one relates to Property and Financial Affairs and the other to Health and Welfare. Prior to 2007 the document relating to financial affairs is called an Enduring Power of Attorney.

Property and Financial Affairs Lasting Power of Attorney

An attorney has authority to act under the Property and Financial Lasting Power of Attorney (LPA) once it has been registered with the Office of the Public Guardian. The attorney may assist the donor with their financial and property affairs if the donor requests the attorney or attorneys to do so. The attorneys may also assist the donor with such affairs if the donor no longer has mental capacity. This includes dealing with all financial arrangements and, if necessary, the sale of the donor’s property.

Health and Welfare Lasting Power of Attorney

An attorney only has authority to make decisions on behalf of the donor under the Health and Welfare Lasting Power of Attorney when the donor has lost mental capacity. Those decisions must be in the best interests of the donor.

Read our blog on everything you need to know about Powers of Attorney here

Enduring Power of Attorney or utilise a registered Lasting Power of Attorney here

Deputy

If a person does not have mental capacity to make decisions for themselves and has not already appointed an Attorney through a Property and Financial Affairs Lasting Power of Attorney or Enduring Power of Attorney, then a Deputy would need to be appointed through a Deputyship Order application to the Court of Protection.  The duties of a Deputy are set out in a Court Order issued by the Court of Protection

A Deputy can be a family member, friend, or solicitor who can only deal with a person’s personal financial affairs, as set out by the Court, and must follow the rules of the Mental Capacity Act Code of Practice. It is ultimately the Court’s decision as to who is appointed as the Deputy. The Deputy can assist in managing a person’s bank accounts, bills, debts, and care fees and ensure they have enough money for everyday needs. However, they cannot necessarily sell property or make health and welfare decisions.

The Deputy is supervised by the Court of Protection and must submit reports and accounts periodically. The application for a Deputyship order can take the Court of Protection up to nine months to process and requires the submission of detailed information. In addition, there are various costs throughout the application process.

You can read more about the Court of Protection and Deputies here

Trustees

If, under a Deputyship, the person who has lost metal capacity (the donor) has property that is co-owned with another, then what’s known as ‘a Trust of Land’ exists. In this circumstance, the Deputy will need to make an application to the Court of Protection for a Trustee to be appointed to deal with the share of the property owned by the person who has lost mental capacity.

If the property has to be sold the legal documents are dealt with by the Trustee; the Trustee being the legal representative of the person who has lost mental capacity (the donor).

Contact us

The responsibilities and challenges for Attorneys, Deputies and Trustees can be complex and often professional support is required. Our specialist Later Life Team and Wills Estate Planning and Trusts Team provide expert advice for individuals appointed in such roles. For more information contact a member of our team or email bruceclarke@rixandkay.co.uk