If an individual loses the capacity to make their own decisions, someone else may need to step in to manage their affairs. Two of the most common roles in these situations are a deputy and an attorney. While they can have similar responsibilities, the way they are appointed and the powers they have are different.

Here, the experts at Switalskis explain how each role works under the Mental Capacity Act, when they are appointed and how the Court of Protection is involved.

What is an attorney?

An attorney is a person appointed through a lasting power of attorney (LPA) to make decisions for someone, should they ever lose the capacity to do so for themselves. The LPA must be created and signed while the person still has the mental capacity to do so. The person creating the LPA is called the ‘donor’. Some people may have an enduring power of attorney (EPA) if they made arrangements before 1st October 2007. In either case, this legal document gives the attorney the authority to act on behalf of the person who made it.

There are two main types of LPA:

• A property and financial affairs LPA allows the attorney to manage bank accounts, investments, property and other financial matters. This LPA is flexible, meaning it can be used whilst the donor still has capacity to make their own decisions, but needs some limited assistance. The attorney can step in on an ‘as and when’ basis, with donor’s permission. 
• A health and welfare LPA allows the attorney the power to make decisions about medical care, living arrangements, and day-to-day welfare. This LPA can only be used once the donor loses capacity to make their own decisions. 

An attorney is chosen directly by the donor, which means they can decide who they trust to make decisions on their behalf if they lose capacity in future. The LPA must be registered with the Office of the Public Guardian before it can be used. An important point to note, if the donor loses capacity between the time the LPA is signed and the LPA registration, the LPA can still be registered, as long as the donor had the necessary capacity at the time it was signed. If the registration is opposed, this can become an issue as the person opposing may claim the donor did not have capacity when the LPA was signed. 

What is a deputy?

A deputy is appointed by the Court of Protection when a person has already lost mental capacity - for example, through a brain injury, dementia, or illness - and there is no valid LPA or EPA in place. In these circumstances, the court decides who should take on the role, and the deputy’s work is subject to ongoing supervision to make sure they are acting in the person’s best interests. This can also happen if LPA registration is opposed and evidence provided that the donor did not have capacity to sign an LPA. 

As with an attorney, there are two main types of deputy:

• A property and financial affairs deputy manages financial matters, property transactions and other related decisions.
• A personal welfare deputy makes decisions about healthcare, living arrangements and personal welfare.

Financial deputyship is more common, as it is often beneficial to have an independent person make decision regarding someone’s finances. Whereas personal welfare is typically best decided by an individual’s loved ones. 

The role of the Court of Protection

The Court of Protection can appoint one or more people, sometimes from the same family or jointly with a professional, to act as deputies. The deputy’s responsibilities are set out in a deputyship order issued by the court. They must follow the conditions in their court order, act within their powers and be able to show they are acting correctly through records and annual reports. They may also be required to pay a security bond, submit an annual report explaining the decisions they have made and pay an annual fee to the Office of the Public Guardian.

The Court of Protection makes decisions for people who lack mental capacity and can appoint deputies to manage their affairs. It also resolves disputes about lasting powers of attorney, deputyship orders and decisions made on behalf of the person concerned.

Key differences between an attorney and a deputy

While both roles involve making decisions for someone who lacks mental capacity or requires intermittent support, the way they are put in place and the level of oversight involved are different. Understanding these differences can help families plan the right approach for the person concerned.

• When they are appointed: an attorney is appointed by the individual before they lose capacity while a deputy is appointed by the court after capacity is lost.
• Who appoints them: an attorney is chosen by the person making the LPA, but a deputy is chosen by the Court of Protection.
• Process: an LPA is set up through a legal document registered with the Office of the Public Guardian. A deputyship requires a court application and formal order.
• Supervision: where attorneys have minimal supervision once appointed, unless formally investigated by the Office of Public Guardian, deputies must report to the Office of the Public Guardian and may face more restrictions.
• Costs and timescales, an LPA is generally quicker and less expensive to arrange than a deputyship order.

Knowing these distinctions makes it easier to understand when each arrangement is likely to be needed, and why the question of mental capacity is such an important factor.

What does it mean to lose mental capacity?

Under the Mental Capacity Act 2005, a person is considered to lack capacity if they are unable to make a specific decision at the time it needs to be made because of an impairment or disturbance in the way their mind or brain works. This could be the result of a permanent condition, or a temporary issue such as a serious illness.

Mental capacity is decision-specific. A person may be able to make choices about day-to-day matters, such as what to eat or wear, but be unable to manage complex financial affairs or make decisions about medical treatment. Assessments look at whether the person can understand the relevant information, retain it long enough to make a decision, use or weigh it as part of the process and communicate their choice.

Where a person no longer has capacity and there is no valid legal arrangement in place, formal steps are needed for someone to gain the legal authority to manage their affairs. In many cases, this is where the Court of Protection becomes involved. 

Why it can be better to plan ahead with lasting powers of attorney

Making a lasting power of attorney while a person still has capacity means you can help them decide who will make decisions on their behalf if needed in the future. This can avoid the delays, costs and uncertainty that come with a deputyship application to the Court of Protection.

At Switalskis, we specialise in enabling people to manage how decisions are made for them and by whom. We can also guide clients in disagreements regarding appointing attorneys or deputies, whether trusted family members, friends or a professional, so their property, financial affairs and personal welfare are managed by people they know will act in their best interests. Court of Protections proceedings can be incredibly stressful and personal, so the specialist legal expertise we provide is of particular importance. 

Whether helping someone to plan ahead or supporting families through an unexpected change, the team at Switalskis is here to put the right legal arrangements in place. We approach every situation with professionalism, clarity and compassion, making the process as straightforward and reassuring as possible for everyone involved. To speak with one of our solicitors about appointing an attorney or applying for a deputyship, call us on 0800 138 0458 or contact us through our website .