Court of Protection Deputy or Lasting Power of Attorney

The difference between a deputy and a power of attorney comes down to timing. A power of attorney is arranged while the person still has mental capacity to give it. A deputy is appointed by the Court of Protection after capacity has gone, when no power of attorney exists. You cannot set up a new power of attorney if you lose mental capacity; instead, your relatives or a trusted person need to apply for a Court of Protection order for a deputy to be appointed¹.

That single rule decides almost everything else. A power of attorney is a legal document that gives a third party the authority to make financial decisions for someone else, and it is only useful if the person is over 18 and has mental capacity². A deputyship is used when someone has already lost capacity and there is no valid power of attorney in place⁴. The court route is described by independent guidance as lengthy and costly, and the person cannot choose who their deputy is⁵.

Deputy or power of attorney: the core difference

A power of attorney is when someone gives another person legal permission to act on their behalf⁷. The person giving the permission is called the donor, and the person receiving it is called the attorney⁸. A deputy arrangement is very similar, but it is not arranged before the situation arises: it is put in place after mental capacity has diminished⁹. A deputy is someone the court appoints to make decisions for someone who cannot make decisions for themselves¹⁰.

There are two types of deputy: the property and financial affairs deputy and the personal welfare deputy⁵. Banks describe the same split, with one deputy for property and financial affairs and one for health and welfare¹¹. The court order will set out what decisions the deputy can make on behalf of the person who does not have mental capacity¹¹.

The two routes also differ in who chooses. With a power of attorney, the donor picks the attorney, and can appoint as many attorneys as they like, plus replacement attorneys¹². With a deputyship, the court decides, and the person cannot choose who their deputy is⁵. A deputy can only act within the authority set out by the court, and has a duty to act in good faith and in the person's best interests⁵.

The same principles apply across the UK, but there are different terms and processes between the countries⁷. In England, Wales and Scotland there are two types of lasting power of attorney; the property and financial affairs version is known in Scotland as continuing power of attorney, and it is the only type in Northern Ireland, where it is called an enduring power of attorney¹³.

How a Lasting Power of Attorney works

A lasting power of attorney is a legal document that nominates a trusted person to manage your affairs if you ever lose the capacity to do so yourself¹⁴. It is a way of giving someone you trust the legal authority to make decisions on your behalf if you lose the mental capacity to do so in the future, or if you no longer want to make decisions for yourself¹⁵. You can appoint one or more people to make decisions about money and property for you, including collecting your State Pension¹⁶.

There are two different lasting powers of attorney: one which relates to health and welfare, and one for property and financial affairs. Both need to be registered at the Office of the Public Guardian¹⁷. Independent guidance describes the same two types: one for making financial decisions and another for making health and care decisions¹².

The key feature is that it survives the loss of capacity. A lasting power of attorney is still valid after you lose mental capacity, but you still need to set it up while you have mental capacity¹⁸. Once registered, it remains valid even if the donor loses mental capacity¹⁹. By contrast, an ordinary power of attorney is temporary and is only valid while you have mental capacity, and it becomes invalid once the donor has lost capacity¹⁸. A general power of attorney does not continue if someone loses their mental capacity, but a lasting power of attorney does²¹.

Lasting powers of attorney were introduced in October 2007 and replaced enduring powers of attorney²². Enduring powers of attorney can no longer be made, having been replaced by property and financial affairs lasting powers of attorney under the Mental Capacity Act 2005²³. If you made an enduring power of attorney that was signed and witnessed before October 2007, you can either continue to use it or cancel it and set up a property and financial affairs lasting power of attorney⁷. An enduring power of attorney in place before 1 October 2007 can still apply²³.

How a Court of Protection deputyship works

A Court of Protection order is a legal document that appoints someone, known as a deputy, to make decisions on behalf of someone else, the donor²⁴. A deputy is authorised by the Court of Protection to make decisions on their behalf⁹. The court can appoint a deputy or an appointee in England and Wales².

The application comes from the person who wants to act, not from the person who needs help. If you are a friend, relation or know someone who has lost their mental capacity, you can apply to the Court of Protection²⁵. Usually a close friend, family member or someone else who can be trusted applies for a court order to appoint a deputy¹¹. The proposed deputy will need to apply to the court, rather than the person needing the help, and the application can be a long process⁴.

The court then decides. It will consider whether it is necessary for ongoing decisions to be made on the person's behalf, and whether the person applying is suitable⁵. The court usually does everything by post, rather than holding a hearing⁵. The account owner can have more than one deputy²⁶.

If no power of attorney was set up before loss of mental capacity, someone else would need to apply to the Court of Protection if they wish to make decisions on your behalf. The court would then decide whether to grant a deputyship order and appoint the person as your deputy²⁷. Independent guidance describes applying for deputyship through the Court of Protection as a process that can be both time-consuming and costly¹³.

Deputyship is permanent: how long each arrangement lasts

A deputyship is ongoing⁸. A lasting power of attorney also has no fixed expiry: it remains in place until you pass away or revoke authority¹⁵. The lasting power of attorney does not expire, though it can be cancelled by the attorney, or the donor if they still have mental capacity²⁸.

Both arrangements end at death. A power of attorney automatically ceases if the person who set it up dies, and any authority as attorney is not valid from the date of death⁹. A power of attorney ends when the donor passes away¹. The same applies to a deputyship: any Court of Protection order automatically ceases on the death of the person it was set up for, and any authority as deputy is not valid from the date of death⁹. A lasting power of attorney for property and financial affairs automatically ends when you die²⁹.

A lasting power of attorney can be cancelled while the donor still has capacity. You can cancel it at any time while you have mental capacity by sending the original lasting power of attorney document and a deed of revocation to the Office of the Public Guardian¹². The same process applies to ending a power of attorney: sending the original document and a written deed of revocation to the Office of the Public Guardian²⁷.

A deputyship can be replaced rather than cancelled by the person it covers. To appoint a new deputy, the Court of Protection will revoke the original order and issue a new one²⁶.

Deputies were once called receivers

The role now called a deputy used to be called a receiver. From 1 October 2007, people appointed by the Court of Protection became known as deputies rather than receivers⁴. The Court of Protection appoints an individual, individuals or a corporate body, the deputy, previously known as the receiver²⁰.

The terminology differs across the UK. In Northern Ireland the equivalent is called a controller, and in Scotland a guardian is granted a Guardianship Order²⁰. The same official guidance sets out all three names side by side, which is useful if you are reading an older document or dealing with a bank that uses the older wording.

The change of name did not change the role. A receiver appointed before 1 October 2007 was doing the same job that a deputy does now: managing the property and financial affairs of someone who had lost capacity, under the authority of the court. If you come across the word receiver in an old court order or a bank's internal notes, it refers to the same appointment.

The related change in the law was the replacement of enduring powers of attorney. Lasting powers of attorney replaced enduring powers of attorney in England and Wales from 1 October 2007²⁰. The enduring power of attorney was replaced with the property and financial affairs lasting power of attorney in October 2007⁷. An enduring power of attorney was replaced by lasting power of attorney in 2007³⁰.

Choosing between them: when a deputyship becomes the only route

The choice is not really a choice. It is decided by whether the person still has mental capacity at the moment the arrangement is made. Someone can only give you power of attorney if they are still able to make their own decisions⁷. A power of attorney is only useful if someone is over 18 and has mental capacity¹⁰. You cannot set up a new power of attorney if you lose mental capacity¹.

If capacity has already gone and no lasting power of attorney or enduring power of attorney has been granted, the options are a Court of Protection order or appointeeship³¹. Appointeeship is narrower: it only covers benefit payments, and managing other finances requires applying to the Court of Protection to become a deputy²³. A deputyship is used when someone has already lost capacity and there is no valid power of attorney in place⁴.

There are also limits on who can act. You may not act or be appointed as the lasting power of attorney for a donor's property and affairs if you are an undischarged bankrupt³². If the donor is made bankrupt, the lasting power of attorney for their property and affairs will be revoked³².

If a power of attorney is already in place but the attorney can no longer act, the arrangement may fail. If you have only one attorney named and he or she is no longer able to act for you, a new power of attorney must be drawn up³³. Where attorneys act jointly, if one attorney decides they can no longer act, becomes bankrupt, mentally incapable, or dies, the power of attorney becomes invalid and a new one must be set up²¹. The power of attorney will state whether attorneys must act jointly or jointly and severally³⁴.

Where to get help

The first stop for a deputyship is the Court of Protection itself. To apply for a Court of Protection order you need to visit the GOV.UK website and go to applying to be a deputy²⁵. You, or a close friend or relative, need to apply to the Court of Protection for a financial deputyship order³⁵.

Banks and building societies have their own processes for registering either arrangement. To add a power of attorney to an account, one building society asks for a completed addition of an attorney or deputy application form, plus original or certified copies of ID documents for both the donor and attorney, in branch by appointment or by post¹. To revoke, cancel or update a power of attorney, the donor needs to inform the Office of the Public Guardian by visiting GOV.UK, and then call the bank to remove the attorney's access³⁶.

There is oversight of how either role is used. The relevant authorities can request information about how you use power of attorney and check your decisions, and may arrange a visit or contact people who know the donor³⁴. Deputies face the same scrutiny: they can only act within the authority set out by the court, and they have a duty to act in good faith⁵.

If something goes wrong with how a bank or other firm has handled a power of attorney or deputyship, the Financial Ombudsman Service can look at complaints. It describes a power of attorney as a legal document that gives a third party the authority to make financial decisions for someone else, and it can appoint a deputy or an appointee in England and Wales².

Free and impartial help is available. The Office of the Public Guardian handles registration and revocation of lasting powers of attorney¹². Independent guidance services such as Age UK and Which? publish step-by-step explanations of both routes⁵. For anyone managing money for someone else, Scope publishes advice on the practical side⁶, and the Building Societies Association sets out the support options banks offer, including third party withdrawal mandates, letters of authority, information sharing arrangements, lasting powers of attorney and Court of Protection deputyship³⁷.