Lasting Powers of Attorney vs Court of Protection Deputyship Order

Lasting Powers of Attorney and Court of Protection Orders are both documents which allow somebody else to manage your affairs on your behalf. Here, we explain both types of documents and highlight the main differences between them.

What are Lasting Powers of Attorney (LPA)?

A Lasting Power of Attorney is a legal document in which you, as the donor, appoint people, such as family and close friends, to make decisions on your behalf when you are unable to do so in the future. Those people are referred to as your attorneys. There are two types of Lasting Powers of Attorney; the Property and Finances LPA and the Health and Welfare LPA.

Anybody can make a Lasting Power of Attorney provided they are 18 years of age or over and are capable of making their own decisions at the time they make the LPA. Once the document has been made, it will be registered with the Office of the Public Guardian.

The Property and Finances LPA is flexible in that you can choose to allow your attorneys to make decisions whilst you still have capacity, with your permission, or you can restrict their use so that they can only be used if you lose mental capacity. The Health and Welfare LPA can only be used in a situation where you have lost capacity.

What is a Court of Protection Deputyship Order?

Where a person lacks the mental capacity to manage their own affairs, an application can be made to the Court of Protection to be appointed as a Deputy to manage the person’s affairs on their behalf.

The powers that the Deputy has will often be restricted and the Deputy must follow the terms of the order strictly. Often the order will require a further application to be made to the court for certain significant decisions to be taken, such as the sale of property. As part of the deputyship application, a capacity assessment will be required to confirm that the person subject to the application is incapable of managing their own affairs.

Deputies will be required to keep accurate records of the person’s finances and spending. Yearly accounts must be submitted to the Office of the Public Guardian and the court will usually require the Deputy to take out a security bond, which is essentially a form of insurance to protect the person’s assets.

What are the main differences?

The main differences between the two documents are as follows:

  • Lasting Powers of Attorney can only be made by the donor if they have mental capacity to make decisions for themselves and can manage their affairs.
  • A Deputyship Order can only be made where a person lacks capacity to manage their own affairs.
  • Property and Finance LPAs can be used prior to the donor losing capacity if they so choose when creating their LPA, whereas a Deputyship Order can only be applied for where the person has lost capacity.
  • Lasting Powers of Attorney do not require yearly accounts to be submitted to the Office of the Public Guardian or a security bond to be taken out, whereas these are both usually required under a Deputyship Order.
  • Lasting Powers of Attorney can provide your named attorneys with far greater powers than a Deputyship Order which will usually be very limited and will often require further applications to the court for certain powers to be exercised.

If you would like advice regarding either document or would like us to draft either a Lasting Power of Attorney or an application for a Deputyship Order, please contact our expert Private Client team below: