Property and Financial Affairs Deputy: What Can They Do Compared to an LPA Attorney?

When someone can no longer manage their own financial and property affairs, they need trusted individuals to act on their behalf. Two legal mechanisms exist in the UK to enable this: a Lasting Power of Attorney (LPA) and a Court of Protection deputyship. Although both allow others to handle finances and property decisions, they differ significantly in how they are created, who can use them, and what powers they grant. Understanding these differences is essential for anyone planning ahead or considering their options if circumstances change.

What Is Lasting Powers of Attorney?

A Lasting Power of Attorney is a legal document created while a person has mental capacity. It allows them to appoint an attorney (or multiple attorneys) to manage their property and financial affairs immediately or in the future. The person creating the LPA, known as the donor, retains full control and can revoke it at any time while they have capacity. An LPA is the preferred route for planning ahead, as it avoids the need for court involvement and gives the donor direct choice over who manages their affairs.

Creating an LPA involves completing a prescribed form, having the document witnessed by an independent witness, and registering it with the Office of the Public Guardian. The process is straightforward when someone plans ahead. An LPA can be created for property and financial affairs, health and welfare decisions, or both. For a comprehensive understanding of how LPAs work, If you want to get started right now, you can download the Lasting Power of Attorney checklist which gives you step by step instructions to get it in place:

What Is a Court of Protection Deputyship?

A Court of Protection deputyship is a legal appointment made by the courts when someone lacks mental capacity and has not put a Lasting Power of Attorney in place. The court appoints a deputy (usually a family member) to manage the person’s property and financial affairs. Unlike an LPA, a deputyship is imposed by the court rather than chosen by the individual. This represents a more formal, legally binding arrangement with ongoing oversight by the Office of the Public Guardian.

Deputyships exist to protect vulnerable people who cannot make decisions and have no LPA in place. The court must be satisfied that the person lacks capacity, that the appointment is in their best interests, and that other arrangements are not more appropriate. Once appointed, a deputy must follow strict legal requirements and provide annual accounts to the Office of the Public Guardian. For more information on this route, the Court of Protection deputyship guide explains the application process and deputy responsibilities.

Powers: What Can a Lasting Power of Attorney Do?

An LPA attorney with property and financial affairs powers can manage a wide range of financial matters on behalf of the donor. These powers are defined in the LPA document and typically include paying bills, managing bank accounts, buying or selling property, investing money, running a business, claiming and receiving benefits, and handling tax matters. The donor can restrict these powers when creating the LPA, or give the attorney broad, unrestricted powers.

Importantly, an LPA attorney can act immediately upon registration if the LPA is set up as a general power. They do not need court approval for individual decisions and can operate with considerable flexibility. This speed and autonomy make LPAs particularly valuable for handling day to day financial management. However, the attorney must always act in the donor’s best interests and within any restrictions the donor has placed on their powers. The detailed guide on what an attorney can do under an LPA provides specific examples of permitted actions.

Powers: What Can a Court of Protection Deputy Do?

A Court of Protection deputy’s powers are also wide ranging and typically mirror those of an LPA attorney for property and financial affairs. A deputy can manage bank accounts, pay bills, sell property, manage investments, claim benefits, and handle other financial matters. However, a deputy’s powers are defined by the court order appointing them, not by the person themselves. The court determines the scope and extent of the deputy’s authority based on the individual’s circumstances and needs.

Additionally, a deputy must obtain court approval before carrying out certain significant actions. These include selling a property (unless the court has authorised this), making substantial gifts, or starting court proceedings on behalf of the person they are managing affairs for. This requirement for approval acts as a safeguard but also makes some transactions slower and more cumbersome than with an LPA. The deputy must also seek permission to manage investments or complex financial decisions.

What Are the Key Differences in Control and Choice?

The fundamental difference lies in who decides. With an LPA, the individual chooses their attorney while they still have capacity. They select someone they trust absolutely and can impose conditions or restrictions. This personal choice and autonomy are the defining features of an LPA. The individual remains in control of the decision making process from start to finish. If they change their mind, they can revoke the LPA at any time.

With a Court of Protection deputyship, control rests with the court. The court appoints a deputy based on what it believes is in the incapacitated person’s best interests. While the court usually appoints a family member if suitable candidates exist, the individual has no say in the matter. They cannot revoke a deputyship themselves because they lack capacity. Only the court can remove or change a deputy, and this requires an application to the court.

How Do Oversight and Accountability Work Together?

Both LPA attorneys and Court of Protection deputies are subject to oversight, but the level and nature differ significantly. LPA attorneys must keep detailed records of all transactions and decisions. While they do not need to submit annual accounts to the Office of the Public Guardian as a standard requirement, they remain accountable and can be challenged by the donor or their family if they breach their duties. The Office of the Public Guardian can investigate complaints about LPA attorneys.

Court of Protection deputies face more rigorous ongoing oversight. They must submit annual accounts to the Office of the Public Guardian, detailing all income and expenditure. These accounts are reviewed, and the deputy must justify significant transactions. The Office of the Public Guardian can object if expenditure seems inappropriate. This higher level of scrutiny provides additional protection for the incapacitated person but also requires more administrative effort from the deputy. The Office of the Public Guardian guide explains their role in monitoring both LPA attorneys and deputies.

Please note: Lasting Powers of Attorney apply in England and Wales only. Different rules apply in Scotland and Northern Ireland.

Frequently Asked Questions

Can someone have both an LPA and a Court of Protection deputy?

Yes, although it is unusual. If someone has a Lasting Power of Attorney in place but it becomes inadequate or the attorney becomes unable or unwilling to act, the court can appoint a deputy to work alongside or instead of the attorney. Generally, having an LPA in place prevents the need for a deputyship, so both existing together is rare.

What happens if an LPA attorney acts dishonestly or makes poor decisions?

If an LPA attorney breaches their duties, misuses funds, or acts against the donor’s interests, the donor or their family can take legal action. The Office of the Public Guardian can investigate complaints and may remove the attorney. The donor can also revoke the LPA if they still have capacity. These safeguards exist to protect donors from misuse.

Can a deputy make gifts of the person’s money or property?

A deputy can make small gifts, such as birthday or Christmas gifts, without court approval. However, substantial gifts or gifts outside reasonable seasonal generosity require court approval. This restriction prevents deputies from making inappropriate transfers that could deplete the incapacitated person’s estate for selfish reasons.

Which option is better: LPA or deputyship?

An LPA is almost always preferable because it allows someone to plan ahead, choose their own attorney, and avoid court involvement. A deputyship only arises when no LPA exists and someone has lost capacity. Planning ahead with an LPA prevents the expense, delay, and loss of autonomy associated with a court imposed deputyship.

What if the donor wants to restrict the attorney’s powers under an LPA?

An LPA allows the donor to specify restrictions or conditions. For example, they might prohibit selling the family home without family consent, or restrict the attorney to spending under a certain amount monthly. These restrictions are binding and protect the donor’s wishes while still allowing the attorney to manage essential matters.

TL;DR: Lasting Power of Attorney vs Court Deputyship

An LPA is a voluntary arrangement giving a chosen attorney power to manage finances and property, while a deputyship is a court imposed arrangement when no LPA exists and someone loses capacity.

• LPA attorneys are chosen by the individual. Court of Protection deputies are appointed by the court.
• LPA attorneys can act immediately without court approval for most decisions; deputies must seek court permission for major transactions.
• LPAs are faster, cheaper, and less restrictive than deputyships.
• Deputies face stricter oversight, including annual accounts to the Office of the Public Guardian.
• An LPA can be revoked by the donor; a deputyship can only be removed by the court.
• Planning ahead with an LPA avoids the need for a costly and lengthy court application.

More From Elwyn & Mabel

Creating a Lasting Power of Attorney is one of the most important steps in planning for the future. Download the free Lasting Power of Attorney Checklist for a step by step guide to getting your LPA in place, explained in plain language.

For personalised guidance on creating a Lasting Power of Attorney or any aspect of estate planning, book a free consultation with Elwyn & Mabel. The team will answer questions, review individual circumstances, and help put the right plan in place.