Lasting Power of Attorney vs Deputyship
Lasting Power of Attorney and deputyship are terms describing two different legal agreements concerning the care of a person who does not have the mental capacity to make their own decisions.
A Lasting Power of Attorney is established in advance – for instance, an older person may nominate a trusted family member such as an adult child to make medical, care, or financial decisions on their behalf when they lose mental capacity to make those decisions independently.
A deputyship is a similar arrangement, but one which is ordered by the Court of Protections in the event that a person loses their decision-making capacities without a Lasting Power of Attorney in place.
Deputyship vs Power of Attorney at a Glance
Below is a quick table outlining some of the main differences between deputyship and Lasting Power of Attorney.
| Dimension | Power of Attorney (LPA) | Deputyship (Court of Protection) |
|---|---|---|
| Mental capacity | Can only be made while the donor has capacity | Only appointed once the person has been assessed as lacking capacity |
| Who chooses | The donor chooses their own attorney(s) | The Court of Protection decides who is appointed, taking the family’s wishes into account |
| Where you apply | Registered with the Office of the Public Guardian | Application filed with the Court of Protection |
| Application fee | £92 | £432 |
| Typical processing time | 8-10 weeks (provided all application information is correct) | Typically 4-6 months |
| Oversight body | Office of the Public Guardian | Court of Protection (created under the Mental Capacity Act 2005) |
What is Lasting Power of Attorney?
Lasting Power of Attorney is a legal arrangement made where a person nominates a trusted individual to make decisions on their behalf in the event that they lose the mental capacity to make decisions for themselves.
There are two main types of LPA:
Property & Financial Affairs LPA
A Property & Financial Affairs LPA names the individual(s) you wish to make decisions around your property, estate, and other financial matters in the event you are unable to do so yourself. This includes taking care of bank accounts, buying and selling property, investment portfolio management, and any benefits or pensions you may have.
Health & Welfare LPA
A Health and Welfare LPA is nominated to manage decisions on arrangements such as your care and medical needs – for instance, whether or not to receive life-sustaining treatment, or changes to your long-term care arrangements – if you are unable to make these decisions for yourself.
What is a deputyship – and what does the Court of Protection do?
If you do not secure Lasting Power of Attorney before the individual loses their capacity to consent to this, you will have to apply to the Court of Protection for a deputyship.
The Court of Protection is a specialist court created under the Mental Health Capacity Act 2005. It was established to make decisions on behalf of individuals who do not have the mental ability to make decisions for themselves – for instance, if they develop dementia, have learning difficulties, or experience a brain injury which compromises their mental capacity.
Amongst its powers, the Court of Protection can appoint a Deputy in cases where an individual has lost their decision-making capacity, but does not have a Lasting Power of Attorney in place.
Like a Lasting Power of Attorney, a Deputy may be nominated as in charge of Property & Financial Affairs or Health & Welfare Affairs, although the same individual can be appointed as executor for both.
Key differences explained
There are a number of key differences between Lasting Power of Attorney and deputyship as outlined above.
The most significant is that an Attorney is appointed by the donor themselves prior to their loss of mental capacity, whereas a Deputy is appointed by the Court of Protection in the event that such an arrangement has not been made.
It’s also important to note that in the event an application to the Court of Protection is required, the process can be more expensive and take significantly longer.
It is also worth nothing that if the donor (the individual for whom the Attorney or Deputy asks) receives a personal injury compensation payment, this is ring-fenced from means tested benefits and local authority care charging assessments only where a deputyship is in place, meaning this protection does not apply under a Power of Attorney arrangement. Our Court of Protection team can advise in the event of this situation.
How DPH law can help
If you’re looking for support in arranging Lasting Power of Attorney for yourself or a loved one, or are pursuing Deputyship for someone who no longer has the mental capacity to manage their own affairs, Dickinson Parker Hill Solicitors are extensively experienced in these areas of the law.
Contact our team today to find out more.
Frequently asked questions
What is the main difference between a deputyship and a power of attorney?
A Power of Attorney is arranged while the donor (the person for whom the attorney makes decisions) is still compos mentis.
A Deputyship is ordered by the Court of Protection after a person has already lost capacity, and the court – not the individual – decides who is appointed.
Can I still make a Lasting Power of Attorney if a loved one has already lost mental capacity?
No. An LPA can only be made while the person has the mental capacity to understand what they are doing. Once the individual is no longer able to do so, an application to the Court of Protection for a Deputyship Order is the only route available. This is why solicitors generally recommend making an LPA well in advance, while it is still possible to do so.
How long does it take to get a Deputyship Order from the Court of Protection?
Deputyship applications generally take longer than LPA registration. While an application for Lasting Power of Attorney typically takes between 8-10 weeks to process provided all information is correct, a deputyship can take between 4 and 6 months, and in extreme cases can ake as long as 9 months to process.
How much does a Deputyship Order cost compared to an LPA?
A Deputyship application involves a court application fee, a one-off deputy assessment fee, and ongoing annual supervision fees payable to the Office of the Public Guardian once appointed. An LPA involves a single one-off registration fee. Deputyship is significantly more expensive over time – ask our team for current, confirmed figures.
Is there a simpler option? Ordinary and enduring power of attorney
Ordinary Power of Attorney arrangements are less costly, but the power extended is temporary, and not suited for an individual who has lost mental capacity. This would be used if you are in need of short-term assistance, such as extended travel or a hospital stay.
Enduring Power of Attorney is a legacy agreement signed pre-2007, extending similar powers as Lasting Power of Attorney. If you have an EPA agreement signed prior to 2007, it is still valid, but if you are looking to create such a document now, you will need to create a Lasting Power of Attorney.
