Personal Injury Claim Lawyers

The Difference Between A Lasting Power Of Attorney And A Deputyship Order

Planning ahead for the possibility of losing mental capacity is essential for ensuring that your wishes are respected and your affairs are managed properly. In the UK, two key legal tools help with this: a lasting power of attorney (LPA) and a deputyship order. While both give someone the authority to make decisions on your behalf, they differ in several important ways, including how they are set up, when they can be used and the level of control they offer.

In this guide, we will explore the differences between an LPA and a deputyship order, highlighting the advantages and disadvantages of each, so you can make an informed decision about which option is right for you or a loved one.

What Is A Lasting Power Of Attorney (LPA)?

A lasting power of attorney (LPA) is a legal document that allows you (the "donor") to choose someone (the "attorney") to make decisions on your behalf if you become unable to do so yourself in the future. There are two types of LPA:

  1. Property And Financial Affairs LPA: This allows your attorney to make decisions about your finances, such as managing your bank accounts, paying bills, selling property or investing money.
  2. Health And Welfare LPA: This allows your attorney to make decisions about your health care, medical treatment and living arrangements, including decisions about life-sustaining treatment if you are unable to make them yourself.

An LPA must be set up while you still have mental capacity, meaning you are able to understand the nature of the decisions you are making. Once the LPA is registered with the Office of the Public Guardian, it can be used as soon as you lose the mental capacity to make your own decisions (if the document specifies this).

What Is A Deputyship Order?

A deputyship order is a legal arrangement where the Court Of Protection appoints someone (the "deputy") to make decisions on behalf of a person who has lost the mental capacity to manage their affairs and has not set up an LPA. Deputyship orders are typically used when an individual did not make an LPA before losing capacity or when they may not have been able to do so.

  1. Property And Financial Affairs Deputyship: This gives the deputy authority to manage the person’s financial matters, such as paying bills, managing bank accounts and making investment decisions.
  2. Personal Welfare Deputyship: This gives the deputy the authority to make decisions regarding the person’s health, care and welfare, including medical treatment, living arrangements and day-to-day care decisions.

Deputyship orders are granted by the Court Of Protection after a formal application process, which can take several months. The Court Of Protection only issues a deputyship order when it is clear that an individual lacks mental capacity and that a deputy is necessary to make decisions for them.

Key Differences Between A Lasting Power Of Attorney (LPA) And A Deputyship Order

While both an LPA and a deputyship order give someone the legal authority to make decisions for someone who lacks mental capacity, there are several important differences between the two:

  1. When They Are Set Up:
    • LPA: An LPA can only be set up while the individual (the donor) still has mental capacity. The donor chooses who will act as their attorney and can specify the powers they want to grant.
    • Deputyship Order: A deputyship order can only be obtained once a person has lost mental capacity and is unable to make decisions for themselves. The Court Of Protection appoints the deputy and the process is more formal and time-consuming.
  2. Control And Flexibility:
    • LPA: With an LPA, the person creating the document (the donor) has more control over the process. They can choose their attorney, decide what decisions the attorney can make and provide clear instructions in the LPA document. The donor can also revoke or change the LPA if they still have mental capacity.
    • Deputyship Order: A deputyship order is less flexible. The deputy is appointed by the Court Of Protection and their powers are strictly limited to what is granted by the court order. The individual losing capacity cannot change or revoke the deputyship order once it is in place.
  3. Who Appoints the Decision-Maker:
    • LPA: The donor appoints their attorney and can choose someone they trust, such as a family member, friend or professional advisor. The donor can also specify whether they want their attorney to act alone or jointly with others.
    • Deputyship Order: The Court Of Protection appoints the deputy. While the court will take into consideration the wishes of the individual and may appoint a family member or friend, the final decision lies with the court. This process is more formal and can take months.
  4. Costs And Time Involved:
    • LPA: The process of creating an LPA is generally quicker and less expensive. There are registration fees for the LPA, but once it is set up, the costs are minimal unless you require legal advice.
    • Deputyship Order: Applying for a deputyship order is a more complicated and costly process. Court fees, legal costs and the potential need for professional advice make it a more expensive option. The process can take several months due to the formal application procedure and the Court Of Protection’s review process.
  5. Scope Of Decisions:
    • LPA: An LPA allows the donor to specify which types of decisions the attorney can make and provides them with more flexibility. The donor can also include any restrictions or conditions on the attorney’s powers.
    • Deputyship Order: A deputyship order grants a deputy authority over the individual’s affairs but the scope of the deputy's powers is determined by the Court Of Protection. The deputy must act in the person’s best interests and may have to report to the court annually.

Which Option Is Right For You?

  • Lasting Power Of Attorney (LPA): If you are able to make decisions for yourself now and want to plan for the future, setting up an LPA is often the most straightforward and flexible option. It allows you to choose who will make decisions for you and what decisions they can make. LPAs also avoid the need for the court to get involved later.
  • Deputyship Order: If someone you care for has already lost mental capacity and has not set up an LPA, or if they are unable to set one up, applying for a deputyship order may be the only option. While the process is more formal and can take time, it ensures that someone is legally empowered to make decisions on their behalf.

Both lasting power of attorney (LPA) and deputyship orders provide a mechanism for making decisions on behalf of someone who lacks mental capacity, but they differ significantly in terms of how they are set up, the level of control, and the costs involved. If you are in the position to plan for your future, setting up an LPA is a proactive and flexible solution. However, if a loved one has already lost capacity, a deputyship order may be necessary.