What is a deputy / attorney?

Following our recent announcement that Glen Miles has been appointed as a Panel Deputy for the West and the South East of England regions, we wanted to take the opportunity to explain the distinction between a deputy and an attorney. These roles are often misunderstood, yet each carries specific responsibilities and arises in different circumstances. Understanding the difference helps individuals and families identify the right approach when supporting someone who lacks capacity.

If you are not aware of the difference between an attorney and a deputy, you are not alone, but it is crucial to understand that there are important distinctions. Each role arises in different circumstances and carries its own legal responsibilities. By being aware of these differences, people can better navigate practical, financial and healthcare decisions, reduce misunderstandings during stressful periods, and ensure that the person lacking capacity is supported in a way that reflects their wishes and feelings.

What is an attorney?

An attorney is a person or trust corporation appointed by an individual (the donor) through a Lasting Power of Attorney (LPA) to make decisions on their behalf. The attorney(s) can be family, friends, or professionals. The donor must have capacity to make an LPA and to choose who they want to act for them.

There are two types of LPAs: property & financial affairs, and health & welfare. Once the LPA is registered, the property & financial affairs attorney can begin to assist and make decisions for the donor with their consent and at their direction. A health & welfare attorney can only act once the donor lacks capacity to make those decisions for themselves.

When making a property & affairs LPA, the donor authorises the attorney(ies) to make a wide range of financial decisions for them, for example, buying and selling property and investing funds on their behalf. Any particular wishes or restrictions should be noted within the LPA at the time of execution.

What is a deputy?

A deputy is a person or trust corporation appointed by the Court of Protection when someone lacks mental capacity and has not put an LPA in place. A deputy acts under a court order, rather than being chosen directly by the individual (who is referred to as ‘P’). Similar to an attorney, there are two types of deputies: property & financial affairs, and personal welfare. However, the court is only likely to appoint a personal welfare deputy in limited circumstances. In most cases, health and welfare decisions are made following a best interests process involving P, his or her family, healthcare and social care professionals, and any other person relevant to the decision being made.

A friend, family member or professional can apply to become someone’s deputy by submitting a deputyship application to the Court of Protection. As part of the application, a professional capacity assessment must be provided to confirm that the person lacks the mental capacity to manage their own affairs. There are currently delays of around 12 months before a court order is issued, and during this time, no one has legal authority to make financial decisions on P’s behalf.

Deputies are usually granted more limited authority than attorneys, on the basis that they are appointed by the Court, rather than P and therefore they must apply to the court for permission to take certain actions. For example, a deputy must obtain the court’s approval to buy and sell property, whereas an attorney automatically has this right unless otherwise precluded from doing so by the donor. Deputies are closely supervised by the Office of the Public Guardian and are required to submit annual reports detailing monies spent and decisions made including details of P’s financial situation. Attorneys are also supervised by the Office of the Public Guardian although they are not required to provide annual reports; they are however subject to spot checks by the Office of the Public Guardian so keeping records and receipts is best practice whether acting as an attorney or deputy.

Summary

Although the roles of attorney and deputy differ, both exist to support vulnerable individuals and ensure that decisions are made in their best interests in accordance with the Mental Capacity Act 2005.

How to get help.

If you or someone you support requires guidance with LPAs or deputyship matters, our Court of Protection team is here to help. We assist individuals, families, professionals, and organisations to understand the legal frameworks involved and ensure the correct authority is in place to manage a person’s property, finances, or welfare decisions. Whether you are considering making an LPA, need to apply to become a deputy for someone, or are acting in one of these roles already and would like ongoing support, we can provide clear advice tailored to your circumstances. Seeking legal guidance at an early stage can help prevent delays, reduce uncertainty, and ensure that decisions are made in the best interests of the person who lacks capacity.