A Lasting Power of Attorney and a deputyship can both allow someone to make decisions for a person who cannot make a particular decision for themselves.
However, they are not interchangeable.
The central difference is timing and choice. A Lasting Power of Attorney is made by you while you have mental capacity, allowing you to choose your attorneys and record how they should act. A deputy is appointed by the Court of Protection after a person has lost the capacity to make the relevant decisions and no suitable authority is already in place.
Understanding that difference can make later-life planning much clearer for individuals and families across Poole, Bournemouth, Christchurch and the wider Dorset area.
What is a Lasting Power of Attorney?
A Lasting Power of Attorney, usually called an LPA, is a legal document for England and Wales. It allows you, as the donor, to appoint one or more trusted people as attorneys.
Your attorneys can support you with decisions or make decisions on your behalf within the authority given by the LPA.
You must have mental capacity to make an LPA. This means you must be able to understand the nature and effect of the document when you create it.
An LPA must also be registered with the Office of the Public Guardian before it can be used.
What is a deputyship?
A deputyship is an arrangement created by the Court of Protection.
If a person lacks mental capacity to make certain decisions and has not already made a suitable LPA, someone may need to apply to the court for authority to act as their deputy.
The Court of Protection decides whether a deputy is needed, who should be appointed and which decisions the deputy is authorised to make. That authority is set out in a court order.
The deputy must act within the order, follow the Mental Capacity Act 2005 and make decisions in the person’s best interests.
LPA vs deputyship at a glance
| Lasting Power of Attorney | Deputyship |
|---|---|
| Made while the donor has mental capacity | Applied for after the person lacks capacity for the relevant decisions |
| The donor chooses the attorneys | The Court of Protection appoints the deputy |
| The donor can include preferences and instructions | The deputy’s authority is defined by the court order |
| Prepared in advance | Usually needed because no suitable LPA is available |
| Registered with the Office of the Public Guardian | Supervised by the Office of the Public Guardian |
| Generally more straightforward than a court application | Involves a formal court process and continuing duties |
The most important difference: planning before or applying afterwards
An LPA is a form of advance planning. You decide who you trust, what authority they should have and whether any preferences or instructions should be included.
Deputyship is different. It is a response to a situation that has already arisen. By the time an application is needed, the person can no longer make the relevant appointment for themselves.
This does not mean that a deputyship is inferior or inappropriate. It can provide essential authority when decisions need to be made. However, it gives the person less direct control over who is appointed and may involve more administration, court oversight and ongoing reporting.
The two types of Lasting Power of Attorney
Property and Financial Affairs LPA
A Property and Financial Affairs LPA can allow attorneys to help with matters such as:
- managing bank and building society accounts;
- paying household bills;
- collecting pensions or benefits;
- dealing with investments;
- managing or selling property; and
- handling other financial arrangements.
Once registered, this type of LPA may be used while the donor still has capacity if the donor permits it. The attorney should support the donor to make their own decisions wherever possible.
Health and Welfare LPA
A Health and Welfare LPA can cover decisions about:
- where the donor lives;
- day-to-day care and support;
- medical treatment;
- care arrangements; and
- life-sustaining treatment, where the LPA gives the attorneys that authority.
A Health and Welfare LPA can only be used when the donor lacks mental capacity to make the particular decision.
The two broad types of deputyship
Property and financial affairs deputyship
This is the more common form of deputyship. It may give the deputy authority to manage income, bills, savings, property and other financial matters.
The exact powers depend on the wording of the court order. A deputy should never assume that they can make every financial decision simply because they have been appointed.
Personal welfare deputyship
A personal welfare deputy may be authorised to make particular decisions about care, residence or treatment.
However, the Court of Protection does not routinely appoint personal welfare deputies with wide and continuing powers. The court may instead make a decision about a specific issue when it arises.
Anyone considering a personal welfare application should obtain guidance based on the individual circumstances.
Who chooses the decision-maker?
With an LPA, you choose your attorneys. You can appoint one person or several people and decide whether they act:
- jointly, meaning they must make decisions together;
- jointly and severally, meaning they can act together or independently; or
- jointly for some decisions and jointly and severally for others.
You can also appoint replacement attorneys in case an original attorney can no longer act.
With deputyship, a proposed deputy applies to the Court of Protection. The court decides whether that person is suitable and whether the appointment is in the best interests of the person who lacks capacity.
A relative is not automatically entitled to become a deputy. In some cases, the court may appoint a professional or panel deputy instead.
Can your children automatically make decisions for you?
No. Being a spouse, partner, son or daughter does not automatically provide authority to manage someone else’s bank accounts, sell their property or make health and care decisions.
Formal authority may come from a valid LPA, a Court of Protection order or another limited legal arrangement that applies to the particular issue.
Our earlier guide explains why your children cannot automatically make decisions for you.
Which arrangement gives you more control?
An LPA gives you more opportunity to shape the arrangement yourself.
While you have capacity, you can:
- choose the people you trust;
- appoint replacement attorneys;
- decide how multiple attorneys should work together;
- record preferences about how you would like decisions made; and
- include legally appropriate instructions that your attorneys must follow.
With deputyship, the Court of Protection determines the appointment and the extent of the deputy’s powers. The person who lacks capacity may still be involved as far as possible, but they can no longer create an LPA or make the appointment themselves.
How do the processes differ?
Making an LPA
The LPA process involves choosing attorneys, completing the appropriate document, obtaining confirmation from a certificate provider, signing in the correct order and applying for registration with the Office of the Public Guardian.
The certificate provider confirms that the donor understands the LPA and is not being pressured to make it.
Because registration takes time, an LPA is most useful when prepared before it is urgently needed.
Applying for deputyship
A deputyship application normally requires information about the person, the decisions that need to be made and evidence concerning mental capacity.
The Court of Protection considers the application and may request more information or arrange a hearing. If a deputy is appointed, the court issues an order defining their authority.
A property and financial affairs deputy may also need to arrange a security bond, pay applicable fees, keep detailed records and submit reports to the Office of the Public Guardian.
What responsibilities do attorneys and deputies have?
Both attorneys and deputies must follow the principles of the Mental Capacity Act 2005.
This includes:
- assuming the person has capacity unless it is established otherwise;
- supporting the person to make their own decisions where possible;
- recognising that an unwise decision does not by itself prove a lack of capacity;
- acting in the person’s best interests when they cannot decide; and
- choosing the least restrictive suitable option.
They must keep the person’s money separate from their own, avoid conflicts of interest and stay within the authority they have been given.
Deputies are supervised by the Office of the Public Guardian and normally have formal reporting obligations. Attorneys are not supervised in exactly the same routine way, although concerns about their conduct can be investigated and the Court of Protection can intervene.
Is deputyship more expensive and time-consuming?
A deputyship application is generally more involved than making and registering an LPA in advance.
It may include court and assessment fees, possible hearing costs, a security bond, ongoing supervision charges and professional costs where help is required. The applicable fees and possible reductions or exemptions depend on the circumstances and can change.
The process can also take time because the court must consider the evidence and decide what order is appropriate.
An LPA also involves preparation and registration, but it is normally a more direct planning process because it is created by the donor while they can make their own choices.
What happens if capacity has already been lost?
A person cannot make an LPA after losing the mental capacity required to understand and create one.
However, capacity is decision-specific and time-specific. A diagnosis of dementia, a brain injury or another condition does not automatically mean that the person lacks capacity to make every decision.
The first step is therefore to establish whether the person can understand and decide about making an LPA at that time. Where they cannot, deputyship or a one-off Court of Protection order may need to be considered.
Can someone have both an LPA and a deputy?
Yes, in some circumstances.
For example, a person may have a valid Health and Welfare LPA but no Property and Financial Affairs LPA. If they later lose capacity to manage finances, a property and financial affairs deputyship may be required.
A deputy may also be appointed for a matter that falls outside the authority of an existing LPA. The documents and court orders must be checked carefully to establish who can make each decision.
When might an LPA be the appropriate route?
An LPA may be appropriate where a person still has capacity and wants to plan ahead for circumstances such as:
- illness or an accident;
- increasing difficulty managing finances;
- future care or health decisions;
- periods spent abroad;
- support with complex property or financial affairs; or
- giving family clear authority and guidance.
It can form part of a wider review alongside your will and other later-life arrangements.
When might deputyship be needed?
Deputyship may need to be considered when:
- the person already lacks capacity for the relevant decisions;
- there is no valid LPA or Enduring Power of Attorney covering the matter;
- an existing attorney can no longer act and there is no effective replacement;
- property must be managed or sold;
- substantial financial decisions are required; or
- the court needs to authorise an ongoing decision-making arrangement.
For some isolated decisions, the Court of Protection may make a one-off order rather than appointing a deputy.
LPA and deputyship guidance in Poole, Bournemouth and Christchurch
Brooks Wills provides clear, plain-English guidance for individuals and families across Poole, Bournemouth, Christchurch, wider Dorset and West Hampshire.
We can help you understand the distinction between planning ahead with an LPA and seeking guidance where capacity has already been lost.
Learn more about our Lasting Powers of Attorney services and our Deputyship and Court of Protection guidance.
Brooks Wills is a member of the Institute of Professional Willwriters and the Society of Will Writers.
Call, message or book a consultation to discuss the appropriate next step for your circumstances.
Simplifying legacies, securing tomorrow.
This article provides general information for England and Wales. It is not legal advice. Mental capacity and the appropriate form of authority depend on the individual circumstances.
Frequently asked questions
Is a deputy the same as an LPA attorney?
No. An attorney is chosen by the donor through an LPA while the donor has mental capacity. A deputy is appointed by the Court of Protection after the person lacks capacity for the relevant decisions.
Can I make an LPA after being diagnosed with dementia?
A diagnosis does not automatically prevent someone from making an LPA. The question is whether the person has the mental capacity to understand and create the LPA at the relevant time. Where this is uncertain, suitable professional assessment or advice may be needed.
Can a deputy make health and welfare decisions?
Only if the Court of Protection order gives the deputy that authority. Wide personal welfare deputyships are not routinely granted, and the court may decide a specific issue instead.
Does the Court of Protection always appoint a family member?
No. The court considers suitability and the person’s best interests. It may appoint a relative, another suitable person, a professional or a panel deputy, depending on the circumstances.
Can an LPA avoid the need for deputyship?
A valid, registered LPA may remove the need for a deputy in relation to decisions covered by the LPA. It cannot cover matters outside its scope, and the Court of Protection may still become involved if a dispute or safeguarding concern arises.
What should a family do if someone has lost capacity without an LPA?
First identify the decisions that need to be made and whether any existing authority covers them. Depending on the issue, deputyship, a one-off court order or another limited arrangement may be appropriate. The right route depends on the person’s circumstances.
