A lasting power of attorney is something you choose. A deputyship is something a court arranges once the choice is no longer yours to make. Both end in the same place, with someone holding legal authority over another person’s affairs, but they are reached from opposite directions, and the gap between them in cost, delay and control is wide. If a relative has already lost capacity with no LPA in place, deputyship is the road you are on. If everyone in your family can still sign their own name, it is the road worth never taking.
What is a deputyship?
When an adult can no longer make a particular decision for themselves, and has not appointed anyone in advance, someone has to apply to the Court of Protection to be appointed their deputy. The court is a creation of the Mental Capacity Act 2005, and a deputy holds only the powers the court order actually grants: no more, no less. Deputies are supervised by the Office of the Public Guardian, must usually take out a security bond (insurance, in effect, against the deputy getting it wrong or helping themselves), and file an annual report accounting for every significant decision and every pound.
There are two kinds, mirroring the two types of LPA: property and affairs, and personal welfare. In practice almost every deputyship granted is the financial one.
Deputyship vs lasting power of attorney: the differences that matter
- Who chooses. With an LPA you pick your attorneys, name replacements and write instructions. With a deputyship the court decides who is suitable, and it does not have to pick the family member who applied.
- When it can be done. An LPA can only be made while you have capacity. A deputyship only exists because capacity has gone. There is no overlap, and no second chance.
- How long it takes. An LPA is registered in advance and works on the day it is needed. A deputyship application runs for months, often the better part of half a year, and longer if anyone objects.
- What it costs. An LPA has one government fee. A deputyship has an application fee, a capacity assessment to pay for, a bond premium, and a supervision fee every year for as long as it lasts.
- Oversight afterwards. Attorneys are trusted unless something goes wrong. Deputies report annually, keep records to a standard the OPG sets, and ask the court whenever a decision falls outside the order.
- What happens in the meantime. Accounts stay frozen while the application grinds on, and the bills carry on arriving.
What applying for a deputyship involves
The paperwork is heavier than most families expect. An application form setting out the person’s finances in detail. A separate assessment of capacity, completed by a doctor or other qualified professional, who is entitled to charge for it. A declaration from the proposed deputy about their own circumstances, including their finances and any convictions. Formal notice to the person the application is about, in a form they can understand, and to others close to them, any of whom may object. Then the court decides, and if it appoints you it defines exactly what you may do. Anything outside that order, and there is always something, means going back to court.
Why welfare deputyships are so rarely granted
This is the part that catches families out. The Court of Protection is reluctant to hand one person standing authority over another’s care, home and medical treatment. It prefers to make individual decisions itself, one question at a time, when a dispute actually arises. So while the financial side of a lost capacity has a fallback (slow, costly and supervised, but a fallback), the welfare side effectively does not. Nobody gets appointed to decide where your mother lives or whether she accepts a treatment; the family raises it, the professionals decide, and the court adjudicates if they cannot agree.
A health and welfare LPA is therefore not the optional one of the pair. It is the one with no substitute. If you make only a financial LPA, you have covered the risk that does have a plan B and left the other uncovered.
What a deputy cannot do
- Make gifts freely: a deputy may give modest presents on customary occasions, in keeping with what the person always did, but anything larger, including inheritance tax planning, needs the court’s permission
- Make or change a will: that requires a separate application for a statutory will, decided by the court
- Act on their own judgement of what is sensible: every decision must be made in the person’s best interests under the Mental Capacity Act 2005, consulting those who know them and involving the person as far as they can be involved
- Assume capacity is gone across the board: capacity is decision-specific and can fluctuate, and a deputy must let the person make every decision they are still able to make
What the two routes cost
An LPA costs £82 to register with the Office of the Public Guardian, once, plus whatever help you buy in preparing it. A deputyship costs an application fee to the Court of Protection (published at £421), the capacity assessment, the bond premium and an annual supervision fee (published at £320 for general supervision), and it keeps costing that last one every year. Fee reductions and remissions exist on both routes for people on low incomes or certain benefits, and the published figures are reviewed from time to time, so check the current ones before you budget. Most families also pay a solicitor to run the deputyship application, which is comfortably the largest number in the list. The full picture on the other side of the comparison is in what an LPA costs.
If capacity has already gone
First, do not assume. Capacity is decision-specific and time-specific under the Mental Capacity Act 2005, and the law starts by presuming a person has it. Someone who can no longer manage an investment portfolio may still understand perfectly well what it means to appoint their daughter to help with their money. Where that is true, an LPA can still be made, and it is faster, cheaper and closer to what they would have wanted than anything a court will impose. Get a proper assessment rather than a family opinion.
Second, search the house. Enduring powers of attorney made before October 2007 are still valid and still sitting in drawers, and one may cover the financial side already: what to do with an old EPA is a short read that has saved people an entire application. Third, ask whether you need standing authority at all, or only one decision made. If it is one decision, the court can be asked to make it directly, which is quicker than becoming a deputy. And check whether there is an advance decision refusing treatment, which binds doctors regardless of who else is involved.
Doing it the other way round
Every deputyship is a document that was never made. That is not a reproach to the families in the middle of one, most of whom had no idea the gap existed until they fell into it, but it is the reason the paperwork is worth an evening now. Willful prepares both types of LPA for £99 each, through a guided interview, with an SRA-regulated solicitor checking the forms before you sign and the registration paperwork prepared so the £82 is the only thing left to pay. Most people do it in the same sitting as their will, which is the natural moment: the same questions, the same people, answered once.