The Difference Between a Court of Protection Deputyship and a Lasting Power of Attorney

When planning for the future, it is important to understand the distinction between a Lasting Power of Attorney (LPA) and a Court of Protection Deputyship. Both mechanisms allow another person to make decisions on behalf of an individual who lacks mental capacity, but they arise in very different circumstances and offer markedly different levels of control, cost and flexibility. We advise clients daily on both options and the implications of each.

What Is a Lasting Power of Attorney

A Lasting Power of Attorney is a legal document created whilst an individual has mental capacity. It allows that person (the donor) to decide in advance who should act on their behalf in relation to financial matters, health and welfare decisions or both. The document is prepared, signed and registered with the Office of the Public Guardian before it can be used. LPAs are proactive arrangements; they are made by choice, and the donor retains complete control over who is appointed and what powers they are given. They are an important part of responsible lifetime planning.

What Is a Court of Protection Deputyship

A Deputyship is required only where an individual no longer has capacity to make decisions and there is no valid LPA in place. In these circumstances, someone, often a family member, must apply to the Court of Protection to be appointed as a deputy. If the court considers the applicant suitable, it grants an order specifying the decisions the deputy may make.

Deputyships can relate either to property and financial affairs or to health and welfare, although welfare deputyships are less commonly granted.

The process is reactive and arises out of necessity. Because the person concerned no longer has capacity, they cannot choose who will act for them, nor can they express preferences or instructions regarding how their affairs should be managed. The court ultimately decides who will be appointed and what powers they will hold.

Key Differences Between LPAs and Deputyships

Timing and Control - An LPA is made whilst the individual has capacity and is entirely controlled by them. They select their attorneys, specify their wishes and decide how the document should operate. By contrast, a deputyship is only possible once capacity has already been lost. The individual has no involvement in the appointment process, and the court, rather than the person, determines who will act and on what terms.

Cost and Administration - LPAs are generally straightforward to prepare and involve a single registration fee per document. Deputyship applications are more expensive, involve ongoing court supervision and attract annual fees, security bond premiums and reporting obligations. Deputies must keep detailed financial records and produce annual accounts for the Office of the Public Guardian. Attorneys under an LPA are subject to legal duties but are not required to adhere to the same level of ongoing formal reporting unless concerns arise.

Flexibility and Practicality - LPAs allow the donor to name replacement attorneys, impose instructions, record preferences and set out their expectations clearly. They may structure their arrangements to suit family dynamics or practical realities. Deputyship orders tend to be more restrictive. Deputies must act strictly within the terms of the court order, and significant decisions often require specific court approval. This can lead to delays and increased costs.

Decision‑Making Powers - Both attorneys and deputies must act in accordance with the Mental Capacity Act 2005 and in the best interests of the person concerned. However, attorneys acting under an LPA often have broader powers because the donor can specify what they want their attorneys to do. Deputies may find that their powers are more tightly limited by the court and subject to greater scrutiny.

Which Option Is Better

An LPA is almost always the preferred route. It is more cost-effective, provides far greater control and avoids the stress and uncertainty of a deputyship application. It also ensures continuity, allowing trusted individuals to make decisions without delay at a time when swift action may be necessary.

Deputyships are essential and valuable in cases where an individual has already lost capacity, but they should be viewed as a last resort rather than a planned arrangement. They involve greater formality, increased long-term responsibilities and reduced flexibility when compared with an LPA.

Our Advice

We strongly encourage individuals to prepare LPAs whilst they have capacity, regardless of age or health. Doing so offers peace of mind, clarity and control and prevents the need for relatives to face complex court proceedings at an already difficult time. Where a deputyship is required, we can advise on the application process, the responsibilities of deputies and the ongoing obligations imposed by the Court of Protection.

Scott Harding-Lister