The Office of the Public Guardian (OPG) continues to promote the value and control that can come with having a Lasting Power of Attorney (LPA) through campaigns such as ‘Your Voice, Your Decision’. The campaign, which targeted underrepresented areas across England and Wales, aimed to increase awareness around the importance of having an LPA in place and “encourage more diverse communities to start the LPA conversation with their loved ones”.
In its most recent report, the OPG highlighted the campaign’s success, detailing a positive increase in the number of LPAs on the register. However, it was also shown that it was supervising over 61 thousand deputyship orders.
A deputyship order is a route families end up on when the authority given in an LPA is needed, but has not been put in place, correctly, or in time. Applying for a deputyship order is a viable solution, but it is slower, costlier, and far more restrictive than putting an LPA in place while you can.
In this blog, our private client team explains what a deputyship order is, who needs one, how the application works, and how it compares to a Lasting Power of Attorney.
What Is a Deputyship Order?
A deputyship order is a legal authority granted by the Court of Protection appointing one or more people (the deputies) to make decisions on behalf of someone who has lost the mental capacity to make those decisions for themselves.
The Court of Protection makes its decisions under the Mental Capacity Act 2005, and once appointed, the deputy is supervised by the OPG and must report to them annually.
Loss of capacity can happen for a number of reasons, including:
- Dementia or Alzheimer’s disease.
- A serious brain injury, for example, following a road traffic accident or a fall.
- A stroke.
- A severe learning disability.
- Mental illness that significantly affects the ability to make decisions.
If the person already has an LPA in place, their chosen attorneys can simply step in. Without one, the family has no legal authority to deal with banks, sell property, arrange care or make decisions about treatment, and a deputyship application is usually the only way to gain that authority. Read our previous blog, ‘Why Do You Need an LPA?’ for more related information on the importance of setting up an LPA sooner rather than later.
What Types of Deputyships are There?
There are two main types of deputyship orders, which mirror the two types of LPA:
- Deputyship for Property and Financial Affairs: which allows a deputy to deal with bank accounts, pensions, benefits, paying bills, selling property and managing other financial matters such as investments and business accounts.
- Deputyship for Personal Welfare: which allows a deputy to make decisions about medical treatment, care arrangements, daily routine, and where the person lives.
Typically, most applications are for property and financial affairs deputyships; personal welfare orders are far less common. The Court of Protection will usually only grant personal welfare deputyships where there is an ongoing welfare issue that cannot reasonably be left to medical professionals or social services to handle, and these are reviewed on a case-by-case basis. These types of deputyships may also be considered where there is a real dispute about what is in the person’s best interests.
How the Application Process Works
A deputyship application is significantly more involved than registering an LPA. The main steps are:
- Permission to make an application: The first stage of the process is to work out whether you need permission from the Court to make an application. Typically, you will need permission if the application relates to personal welfare. The COP2: Permission form can be submitted before or at the same time as your COP1: Application form. If you need permission to apply, your application cannot proceed until permission has been granted. More information about permission to make an application can be found in Court Practice Direction 8A.
- Determine the Application Type: Decide if you need to become a deputy for an ongoing role (e.g., finances or medical care) or if you need to resolve a specific one-off decision.
- Capacity assessment: You will need a medical professional to fill out a capacity assessment (Form COP3) to prove the person lacks the mental ability to decide for themselves.
- Fill Out Forms: Complete the main Application Form (COP1), along with any relevant annexes required for your specific situation.
- Notify Parties: Before applying, you must notify the person the application is about and at least three other interested parties (such as family members).
- Court fees and security bond: There are various fees you will be responsible for, including a fee to apply to be a deputy, and a supervision fee every year after you’ve been appointed. You may also have to set up a ‘security bond’ before you can be appointed as a property and affairs deputy. Find out how much you’ll need to pay.
- OPG supervision: Once appointed, the deputy must submit an annual report to the OPG and pay an annual report supervision fee.
Further information and guidance can be found here: Gov.UK – Apply to make decisions on someone’s behalf as a deputy: Form COP1
Even if the application process runs smoothly, deputy applications typically take around six months to finalise. Recent court delays have meant that some applications are taking much longer to complete, during which time the family has no legal authority to act.
Lasting Powers of Attorney vs Deputyship Orders – Why Planning Ahead Matters
The difference between a deputyship order and a Lasting Power of Attorney (LPA) really comes down to timing. An LPA is something you put in place while you still have mental capacity. You appoint an attorney you trust to act for you, what they can decide, and any restrictions you want to apply. Once registered, it sits ready in case it is ever needed.
A deputyship order is what happens when capacity is already lost, and no LPA exists. You will have no control over who is chosen to be your deputy. That decision will be left to the Court of Protection, although it will normally appoint a willing close relative where that is appropriate.
The key differences in practice are worth noting:
- Cost. A pair of LPAs prepared through a solicitor typically costs a few hundred pounds plus the £82 registration fee per LPA. A deputyship application involves court fees, ongoing supervision fees, a security bond premium and higher legal fees.
- Time. An LPA can usually be registered within around 20 weeks. A deputyship application generally takes six to twelve months.
- Control. With an LPA, you choose your attorneys. With deputyship, the Court chooses.
- Scope. Deputies must operate within strict limits set out in their order. Some decisions, such as selling property or making gifts, may need further specific authority from the Court.
Our previous blog, ‘Do You Need a Lawyer for a Power of Attorney?’, goes into more detail on why putting an LPA in place with the help of a regulated legal professional is one of the most useful things you can do for your family.
When a Deputyship Order Is the Right Step
There are situations where a deputyship is the only option, and a sensible one. If a loved one has already lost capacity, an application to the Court of Protection is the legal route to take control of their affairs and act in their best interests.
Common situations include:
- A parent has been diagnosed with dementia and has never put an LPA in place.
- A family member has suffered a serious brain injury and is no longer able to manage their finances or make decisions about their care.
- A young adult with a learning disability has reached 18, and a parent needs continuing legal authority to manage their affairs.
- An existing LPA has become invalid (for example, where all named attorneys have died or are no longer able to act).
In each case, the deputy is appointed to step in legally, make decisions in the best interests of the person they are appointed for, and is held to account by the OPG.
How Langley Wellington Can Help
Our private client team in Gloucestershire has wide experience of both Lasting Powers of Attorney and Court of Protection deputyship applications. We can guide you through whichever process applies, deal with the paperwork, liaise with the medical practitioner carrying out the capacity assessment, and act for you on the application itself.
If a family member has recently lost capacity and you need to apply for deputyship, it is worth starting the process sooner rather than later. The Court will not work faster because it is urgent.
Equally, if you are reading this and thinking about your own future, making an LPA now is far simpler and considerably more cost-effective than leaving your family to apply for deputyship later.
For more on what legal documents you should have in place, read our blog What Legal Documents Do I Need?.
Power of Attorney and Deputyship Solicitors in Cheltenham and Gloucester
To find out more about deputyship applications, LPAs, or any other private client matter, including disputes, please get in touch with our friendly and professional team. We can provide understanding, straightforward guidance tailored to your situation.
Call one of our offices on the numbers provided below, or fill out our online enquiry form:
Gloucester Office: 01452 521 286
Cheltenham Office: 01242 269 998
This blog is not intended to be taken as advice or acted upon. If you are seeking legal advice, please get in touch with our team of solicitors.
