Planning for a time when you might be unable to make certain decisions for yourself can feel uncomfortable, but putting appropriate arrangements in place can make an enormous practical difference for you and your family.
Two terms frequently encountered in this area are Lasting Power of Attorney (LPA) and deputyship.
Both can involve another person making decisions for somebody else, but they are not interchangeable.
A Lasting Power of Attorney is generally created in advance by somebody who has the mental capacity to decide who they want to appoint as their attorney.
Deputyship usually becomes relevant after a person has already lost the mental capacity to make particular decisions and there is no appropriate power of attorney covering what needs to be done. An application is then made to the Court of Protection, which decides whether a deputy should be appointed and what authority that deputy should have.
Understanding the difference can help families appreciate why planning ahead may be valuable and what options may remain available if capacity has already been lost.
This article explains the key differences between Lasting Powers of Attorney and deputyship in England and Wales.
What Is a Lasting Power of Attorney?
A Lasting Power of Attorney is a legal document that allows an individual to appoint one or more trusted people to make certain decisions on their behalf.
The person creating the LPA is called the donor.
The people appointed are called attorneys.
An LPA is made while the donor has the mental capacity required to create it.
This allows the donor to decide personally who should act for them and to make choices about how that authority should operate.
The LPA must be registered with the Office of the Public Guardian before it can be used.
What Are the Two Types of LPA?
There are two types of Lasting Power of Attorney in England and Wales:
- Property and financial affairs LPA
- Health and welfare LPA
A person can choose to make either one or both.
They cover different types of decisions.
What Does a Property and Financial Affairs LPA Cover?
A property and financial affairs LPA can give attorneys authority concerning the donor’s money and property.
Depending on the terms of the LPA, this may include matters such as:
- Managing bank or building society accounts;
- Paying bills;
- Collecting pensions or benefits;
- Managing investments;
- Dealing with property; and
- Handling other financial affairs.
Once registered, a property and financial affairs LPA can potentially be used while the donor still has capacity if the donor gives permission.
This can make it useful not only following loss of capacity but also where somebody remains mentally capable but needs practical assistance.
What Does a Health and Welfare LPA Cover?
A health and welfare LPA concerns decisions relating to personal welfare.
Depending on the authority given, this can include decisions about:
- Daily routine;
- Medical care;
- Where the donor should live; and
- Certain care arrangements.
A health and welfare LPA can only be used when the donor lacks capacity to make the particular decision themselves.
The donor can also decide whether their attorneys should have authority to make decisions concerning life-sustaining treatment.
This is an important choice that should be considered carefully when preparing the LPA.
What Is a Deputy?
A deputy is somebody appointed by the Court of Protection to make certain decisions for a person who lacks the mental capacity to make those decisions themselves.
The person who lacks capacity is often referred to as P in Court of Protection proceedings.
Deputyship may become necessary where important decisions need to be made but no suitable LPA or other authority is already in place.
Unlike an attorney, a deputy is not appointed personally by the individual through an LPA.
The Court decides whether the appointment should be made and what powers the deputy should have.
What Types of Deputyship Are There?
Deputyship can broadly concern:
- Property and financial affairs; or
- Personal welfare.
Property and financial affairs deputyships are more commonly encountered.
The Court of Protection is generally more cautious about appointing personal welfare deputies.
Rather than granting broad ongoing authority over welfare matters, the Court may in some situations prefer to make a decision concerning a specific issue.
Whether deputyship is appropriate depends on the person’s circumstances and the decisions that need to be made.
The Biggest Difference: When Are They Created?
Timing is one of the most important distinctions.
An LPA is created before the donor loses the mental capacity required to make it.
Deputyship generally becomes relevant after capacity has already been lost in relation to the decisions that need to be made.
This distinction can determine which option is available.
If somebody still has the required capacity, they may be able to choose their attorneys and create an LPA.
If they no longer have that capacity, relatives cannot simply create an LPA on their behalf.
A Court of Protection application may instead need to be considered.
Who Chooses the Decision-Maker?
With an LPA, the donor chooses.
They can decide who they trust to act as their attorney.
This might be:
- A spouse or civil partner;
- An adult child;
- Another relative;
- A trusted friend; or
- An appropriate professional.
Eligibility requirements apply, and financial attorneys must not be subject to certain bankruptcy or debt restrictions.
The important point is that the donor makes the choice while they have capacity.
With deputyship, the proposed deputy can apply, but the Court of Protection decides whether that person should be appointed.
Why Does Choosing Your Own Attorney Matter?
Allowing someone else to make important decisions about your finances, property, care or welfare involves considerable trust.
Different people may have very different ideas about who they would want to perform that role.
Someone might trust one child with financial matters but prefer another person to be involved in welfare decisions.
Another individual may prefer a professional to deal with complicated finances.
Creating LPAs gives the donor an opportunity to make those choices personally.
If no LPA exists and capacity is later lost, the individual may no longer be able to determine who should receive legal authority.
Can Family Members Automatically Take Over?
No.
This is a common misunderstanding.
Being somebody’s spouse, civil partner, parent or adult child does not automatically provide unrestricted legal authority to manage all of their affairs if they lose capacity.
For example, organisations dealing with a person’s individual financial accounts may require appropriate legal authority before allowing another person to manage them.
Families can therefore discover during a crisis that their relationship to the person does not, by itself, provide the authority they expected.
An LPA or Court of Protection order can provide a formal legal framework.
What If Someone Has Already Lost Capacity?
If a person no longer has the capacity required to make an LPA, it is generally too late for them to create one.
The family should then consider what legal authority is actually needed.
In some cases, an application to the Court of Protection for deputyship may be appropriate.
The Court will consider the application and evidence concerning the person’s capacity and circumstances.
The fact that somebody is a close relative does not guarantee that they will automatically be appointed.
The Court’s focus is on protecting the person who lacks capacity.
How Is Mental Capacity Assessed?
Mental capacity is decision-specific.
A person should be assumed to have capacity unless it is established that they lack it.
A person is not to be treated as unable to make a decision merely because they make a decision others consider unwise.
Before concluding that someone cannot make a decision, appropriate steps should also be taken to help them make it.
Broadly, the Mental Capacity Act considers whether a person can understand the relevant information, retain it sufficiently, use or weigh it as part of the decision-making process and communicate their decision.
Capacity can also fluctuate.
This means the assessment needs to focus on the particular decision and the relevant time.
Does a Diagnosis Automatically Mean Someone Lacks Capacity?
No.
A medical diagnosis does not automatically determine capacity for every decision.
Someone living with dementia, for example, may retain capacity to make some decisions.
Similarly, a person with a brain injury or other condition may have different levels of capacity depending on the nature and complexity of the decision.
The law focuses on the person’s ability to make the specific decision rather than simply applying a label based on diagnosis.
This distinction can be crucial when considering whether an LPA can still be made.
Who Can Be an Attorney?
An attorney must meet applicable eligibility requirements.
For an LPA, attorneys must generally be aged 18 or over.
Different considerations can apply depending on the type of LPA.
For a property and financial affairs LPA, restrictions can apply where a proposed attorney is bankrupt or subject to certain debt-relief arrangements.
The donor should also consider practical suitability.
Being legally eligible does not necessarily mean somebody is the right choice.
The attorney should be trustworthy, capable of handling the responsibility and willing to act.
Who Can Be a Deputy?
A deputy must generally be aged 18 or over.
Deputies are often family members or friends, although professionals can also be appointed in appropriate circumstances.
For property and financial affairs appointments, the Court may consider whether the proposed deputy has the skills and reliability needed to manage the person’s finances.
The Court can refuse to appoint a proposed deputy if it considers that appointment inappropriate.
Again, deputyship is a court appointment rather than an automatic entitlement arising from family relationship.
How Are Attorneys Supervised?
Attorneys have legal responsibilities and must follow the Mental Capacity Act 2005 and the Code of Practice.
They must act in accordance with the authority given by the LPA.
Where the donor lacks capacity to make a particular decision, attorneys must act in the donor’s best interests.
The Office of the Public Guardian can investigate concerns about the actions of an attorney.
Serious concerns may ultimately be referred to the Court of Protection.
An LPA therefore gives authority, but that authority is accompanied by duties and safeguards.
How Are Deputies Supervised?
Deputies are subject to supervision by the Office of the Public Guardian.
The level of supervision can depend on the circumstances.
Deputies may need to provide reports explaining decisions they have made and how they have managed the person’s affairs.
Property and financial affairs deputies may also be required to arrange a security bond.
The bond is designed to provide financial protection if the deputy mismanages the person’s finances in a way that causes loss.
These ongoing requirements are one of the practical differences between deputyship and an LPA.
Does a Deputy Have Unlimited Authority?
No.
A deputy can only act within the authority granted by the Court of Protection.
The deputyship order sets out what the deputy is permitted to do.
If a decision falls outside those powers, a further application to the Court may be required.
Deputies must also comply with the Mental Capacity Act and act in the person’s best interests.
Appointment as deputy therefore does not provide unrestricted control over another person’s life or property.
Does an Attorney Have Unlimited Authority?
No.
An attorney’s powers are determined by the type and terms of the LPA and the law.
The donor may also include certain instructions or preferences.
Attorneys must comply with their legal duties and cannot simply treat the donor’s assets as their own.
Restrictions also exist around particular transactions, including certain gifts.
Professional advice may be necessary where an attorney is uncertain whether a proposed action falls within their authority.
How Long Does an LPA Take?
An LPA cannot be used until it has been registered with the Office of the Public Guardian.
Registration therefore needs to be factored into planning.
It is usually preferable to create and register an LPA before it is urgently needed rather than waiting until a crisis develops.
If capacity is lost before an LPA has been made, the family cannot solve the problem simply by preparing one retrospectively.
That is when the more formal Court of Protection process may become necessary.
How Long Does Deputyship Take?
Deputyship requires a Court of Protection application.
The process involves forms, evidence and a judicial decision.
The time required can depend on the circumstances and whether the application is disputed or complicated.
Because the family may need authority urgently, discovering that deputyship is required can create practical difficulties.
In genuinely urgent situations, other Court of Protection procedures may potentially be available, but specialist advice should be obtained.
Advance planning through an LPA can avoid the need for a standard deputyship application in many circumstances.
Which Is More Expensive?
The cost structures are different.
Making an LPA involves registration fees payable to the Office of the Public Guardian, subject to any applicable fee reductions or exemptions, together with professional fees if a solicitor is instructed.
Deputyship involves a court application and may involve:
- Court fees;
- Assessment fees;
- Annual supervision fees;
- Security bond costs for financial deputies; and
- Legal or professional fees where applicable.
Costs vary according to the circumstances.
The key distinction is that deputyship is an ongoing court-supervised arrangement, whereas an LPA is created by the donor in advance and registered with the Office of the Public Guardian.
Can You Have More Than One Attorney?
Yes.
A donor can appoint more than one attorney.
They can specify how multiple attorneys should make decisions.
They may be appointed:
- Jointly, requiring them to make specified decisions together;
- Jointly and severally, allowing them to act together or independently; or
- In a combination for different decisions.
The donor can also appoint replacement attorneys in case an original attorney can no longer act.
These choices should be considered carefully because they affect how practical and resilient the LPA will be.
Can There Be More Than One Deputy?
The Court of Protection can appoint more than one deputy.
Where this happens, the Court order will specify how they are authorised to act.
The Court determines the arrangement rather than the person who lacks capacity setting it out personally.
Again, this highlights the difference between advance planning and court intervention after capacity has been lost.
Can Attorneys Make Health Decisions?
Only if there is an appropriate health and welfare LPA and the legal conditions for its use are satisfied.
A property and financial affairs LPA does not automatically give an attorney authority over healthcare.
Likewise, having authority over health and welfare does not automatically provide authority to manage financial affairs.
This is why many people consider making both types of LPA.
They address different areas of life.
Are Welfare Deputies Common?
The Court of Protection does not routinely appoint personal welfare deputies in the same way that property and financial affairs deputies may be appointed.
Government guidance explains that the Court will usually appoint a personal welfare deputy only in rare circumstances.
Often, welfare decisions can be made using the Mental Capacity Act’s best-interests framework without appointing a general welfare deputy.
Where there is disagreement about a significant welfare issue, the Court may instead be asked to decide the specific matter.
This is an important distinction from a health and welfare LPA, through which the donor can choose attorneys in advance.
What Is the Best-Interests Principle?
Both attorneys acting for somebody who lacks capacity and deputies appointed by the Court must operate within the Mental Capacity Act framework.
A central principle is that decisions made for a person who lacks capacity must be made in their best interests.
This does not simply mean choosing what the decision-maker personally thinks is best.
Relevant factors can include the person’s past and present wishes and feelings, beliefs and values, and the views of appropriate people involved in their welfare.
The person should also be involved in the decision as much as reasonably possible.
Can an LPA Be Cancelled?
A donor who still has mental capacity can generally revoke their LPA.
The correct formal process should be followed.
Other events can also affect an attorney’s ability to act.
For example, an attorney may choose to disclaim their appointment, and certain circumstances can terminate an appointment.
Where several attorneys are appointed, the effect on the overall LPA can depend on how they were appointed and whether replacement attorneys exist.
Legal advice can be useful before making changes.
Can a Deputy Be Removed?
Yes.
Because a deputy is appointed by the Court of Protection, changes to the appointment may require Court involvement.
The Court can remove a deputy where appropriate.
Concerns about a deputy’s conduct can also be investigated by the Office of the Public Guardian.
The system is designed to protect the person who lacks capacity rather than give the deputy permanent personal control.
What Happens When the Person Dies?
An LPA ends when the donor dies.
The attorney’s authority under the LPA does not continue for the purpose of administering the deceased person’s estate.
Likewise, deputyship authority ends when the person subject to the deputyship dies.
After death, responsibility for the estate passes to the appropriate personal representatives, such as executors under a will or administrators where there is no valid will.
This is why an LPA or deputyship should not be confused with a will.
They deal with decisions during lifetime, whereas a will primarily deals with the estate after death.
LPA vs Deputyship: Key Differences at a Glance
The simplest way to understand the distinction is to consider who makes the decision and when.
Lasting Power of Attorney
The individual makes the arrangement while they have capacity. They choose their attorney or attorneys and can express instructions and preferences.
Deputyship
The person already lacks capacity for the relevant decisions. Someone applies to the Court of Protection, and the Court decides whether to appoint a deputy and what powers that deputy should have.
Both involve significant legal responsibilities, but the route to obtaining authority is fundamentally different.
Why Planning Ahead Can Matter
Nobody can guarantee that they will always be able to manage every aspect of their affairs personally.
Illness, accidents or cognitive decline can occur unexpectedly.
An LPA provides an opportunity to decide in advance who should have authority if assistance is later required.
Without one, family members may have to seek Court of Protection authority after capacity has been lost.
Deputyship provides an essential safeguard where advance arrangements do not exist, but it involves a court process and ongoing supervision.
For many people, considering an LPA alongside their will can therefore be a sensible part of broader future planning.
Conclusion
Lasting Powers of Attorney and deputyship can both provide legal authority for somebody to make decisions on behalf of another person, but they arise in fundamentally different circumstances.
An LPA is about planning ahead.
While they still have the necessary mental capacity, the donor can choose who they trust, decide which type of authority to give them and put appropriate arrangements in place for the future.
Deputyship is generally about responding after capacity has been lost.
Where no appropriate LPA exists and decisions need to be made, an application may have to be made to the Court of Protection. The Court then determines whether a deputy should be appointed and what authority they should receive.
Deputies are also subject to Court-defined powers and ongoing supervision by the Office of the Public Guardian.
Neither arrangement gives another person unlimited control.
Attorneys and deputies have legal duties, must respect the limits of their authority and must follow the principles of the Mental Capacity Act when making decisions for somebody who lacks capacity.
The practical difference is therefore significant.
Making an LPA while capacity remains gives an individual the opportunity to make their own choice about who should act for them. Waiting until capacity has been lost may mean that the decision instead has to be made through the Court of Protection.
For anyone reviewing their will or wider estate planning, considering Lasting Powers of Attorney at the same time can help ensure that plans address not only what happens after death, but also who can assist if important decisions need to be made during their lifetime.