Power of Attorney vs. Deputyship: What You Need to Know

Making decisions about one’s future can often be challenging, particularly when it comes to health and financial matters. Understanding the legal frameworks available for managing personal affairs is essential. In England and Wales, two widely discussed concepts are Power of Attorney and Deputyship. While both terms relate to appointing someone to make decisions on behalf of another, they operate in significantly different contexts. This blog aims to clarify the distinctions between Power of Attorney and Deputyship, including their functions, legal implications, and appropriateness in various situations.

What is Power of Attorney?

Power of Attorney (POA) is a legal document that grants an individual (the “donor”) the authority to appoint one or more people (the “attorneys”) to make decisions on their behalf. POA can be an essential tool for those who want to ensure their affairs are managed according to their wishes in circumstances when they might be unable to do so themselves.

Types of Power of Attorney

1. Ordinary Power of Attorney: This type allows the appointed person to make decisions on behalf of the donor while the donor is still capable of managing their affairs. It typically comes into effect immediately upon signing and can include matters related to finances, property, and debts.

2. Lasting Power of Attorney (LPA): LPAs were introduced under the Mental Capacity Act 2005. They remain valid even when the donor loses mental capacity. LPAs can be tailored towards specific areas:

   – Health and Welfare LPA: This enables the attorney to make decisions about medical treatment and care if the donor becomes incapacitated.

   – Property and Financial Affairs LPA: This allows the attorney to handle financial matters, such as managing bank accounts and selling property, even in the event the donor loses mental capacity.

Setting Up a Power of Attorney

To establish a Power of Attorney, the donor must:

– Be over 18 years of age.

– Have the mental capacity to make their own decisions at the time of granting the power.

– Complete the relevant forms, ensuring they provide clear instructions regarding the powers granted to the attorney.

Once executed, the LPA must be registered with the Office of the Public Guardian (OPG) before it can be used.

What is Deputyship?

Deputyship is a legal arrangement that comes into play when an individual cannot manage their own affairs due to a mental disability or incapacity and has not established a Power of Attorney before losing capacity. In such cases, the court appoints a deputy to manage the person’s financial and health-related decisions.

Types of Deputyship

Similar to the LPA, deputyship can focus on two distinct areas:

1. Property and Affairs Deputy: Responsible for financial matters, managing bank accounts, dealing with property, and making decisions regarding financial transactions.

2. Health and Welfare Deputy: Handles decisions related to medical care, living arrangements, and any health-related issues.

Applying for Deputyship

To obtain deputyship, an application must be made to the Court of Protection:

1. Application Process: Individuals must fill out specific forms, including details about the person lacking capacity and proposed arrangements.

2. Assessment of Capacity: The court may require medical evidence regarding the individual’s mental capacity.

3. Fees: There are fees associated with applying for deputyship, and ongoing annual fees may apply.

Key Differences Between Power of Attorney and Deputyship

Understanding the differences between Power of Attorney and Deputyship is crucial for determining which option is appropriate for a given situation.

1. Timing:

   – Power of Attorney can be created at any time while the donor has capacity. It allows individuals to choose their representatives proactively.

   – Deputyship is only available post-incident, when the individual is deemed incapable of managing their affairs, and they have not set up a Power of Attorney previously.

2. Choice of Representative:

   – In a Power of Attorney, the donor selects the attorney of their choice.

   – With Deputyship, the court decides who will be appointed as deputy if no Power of Attorney is in place, which may not necessarily align with the preferences of the individual concerned.

3. Scope of Authority:

   – Power of Attorney allows for specific powers to be granted. The donor can outline exactly what decisions the attorney is authorised to make.

   – In Deputyship, the court may impose certain restrictions or requirements, which may limit the deputy’s authority compared to what a Power of Attorney may grant.

4. Flexibility and Control:

   – A Power of Attorney brings flexibility, enabling the donor to determine how and when the attorney acts on their behalf.

   – The Deputyship process is often more rigid, with the court imposing procedures and potentially requiring ongoing reporting and accountability from the deputy.

When to Use Power of Attorney vs. Deputyship

– If an individual is preparing for the future and wants to plan for potential incapacity in advance, setting up a Power of Attorney is the most suitable option.

– If a person has already lost capacity and has not created a Power of Attorney, seeking Deputyship is necessary to ensure that someone is appointed to manage their affairs legally.

Conclusion

Both Power of Attorney and Deputyship serve vital functions in managing personal affairs when individuals cannot make decisions for themselves. However, each has distinct processes, implications, and suitability depending on the individual’s circumstances.

If you are considering your options for managing your affairs or preparing for potential incapacity, it is wise to consult with us as legal professionals specialised in this area. We can provide tailored advice, ensuring that your wishes are respected and that the appropriate solutions are established for your specific needs. By understanding the nuances between Power of Attorney and Deputyship, you can make informed decisions that will safeguard your interests and those of your loved ones in the future.

At Alexander JLO we have many years of experience of dealing with all aspects of law and will be happy to discuss your case in a free no obligation consultation. Why not call us on +44 (0)20 7537 7000, email us at info@london-law.co.uk or get in touch via the contact us button and see what we can do for you?

This blog was prepared by Alexander JLO’s senior partner, Peter Johnson on 19th January 2026 and is correct at the time of publication. With decades of experience in almost all areas of law Peter is happy to assist with any legal issue that you have. He is widely regarded as one of London’s leading lawyers. His profile on the independent Review Solicitor website can be found Here