LPA vs Court of Protection: which is right for you?

Planning ahead for the future is not always easy, especially when it involves thinking about a time when you may need support with important decisions. Whether you are considering making a Lasting Power of Attorney (LPA) or exploring what happens if someone has not made one in time, we at Pinney Talfourd, are here to help.

A Lasting Power of Attorney (LPA) is often described as an insurance policy for your future. It is a legal document that enables you choose someone you trust to manage your property and affairs or your health and welfare. The person making the LPA is known as the Donor, and the person they choose to act for them is called the Attorney.

If the Donor has mental capacity then they can enter into an LPA. However, if someone has lost mental capacity, all hope is not lost. In this situation, the Court of Protection can step in and appoint a Deputy to make decisions on behalf of the person who no longer has capacity; often referred to as “P” (the protected party).

What happens if you don’t have an LPA and you lose capacity?

Many people believe that family and close friends can simply step in if someone becomes unable to make decisions. However, organisations such as banks, local authorities and medical professionals can only share information or allow access when there is clear legal authority in place. This authority is provided through an LPA. But what happens if someone has not made an LPA and later loses capacity?

In these situations, an application can be made to the Court of Protection for a Deputy to be appointed to manage P’s (the protected party) affairs.

Just like an Attorney, a Deputy can be a partner, family member, or close friend who is willing and able to take on the responsibility (a Lay Deputy). Although, if there is not anyone suitable, or if there is likely to be a disagreement within the family, the Court may appoint a professional Deputy instead from their Panel of Deputies.

A Deputy also has to adhere to stricter supervision than an Attorney. The Deputy must adhere to the Deputyship Standards and ensure that a report is filed with the OPG on an annual basis to detail the work that has been undertaken in the deputy year. Attorneys do not have this same obligation.

Challenging or revoking an LPA: the Courts role

Not only does the Court of Protection deal with Deputyship applications, the Court is also there to protect the Donor if an LPA ever needs to be challenged or revoked.

If the Donor still has capacity, they can revoke their LPA themselves. This simply involves signing a Deed of Revocation and letting the OPG know so their records can be updated.

However, if there are concerns that the LPA was made under pressure, undue influence, or when the Donor may not have had capacity, the Court can step in to revoke it. The same applies if you suspect an Attorney is not acting in the Donor’s best interests. In either case it is important to contact the OPG with any concerns as they will  raise a safeguarding concern and consequently arrange for an investigation.

If the Court believe there are any issues with the validity of the LPA or the Attorney has not acted in the best interests of the Donor then the Court can appoint a Deputy to take over decision-making, ensuring the Donor’s affairs continue to be managed safely and in their best interests.

Top tips for choosing an Attorney or Deputy?

Deciding who to appoint as your Attorney or Deputy is one of the most meaningful choices you can make when planning ahead. It is not just a legal formality; it is about choosing someone you feel comfortable handing responsibility to if you ever need support with important decisions. There are three key things to think about:

Legally

Who can I legally appoint? There are a few legal requirements to keep in mind. Your Attorney or Deputy must be over 18 and able to make their own decisions. They also need to understand what the role involves and its responsibilities. They must also not be bankrupt or subject to a debt relief Order in you are appointing them for a Property and Affairs LPA.

Practically

Who would be a good practical choice? Although your Attorney or Deputy does not have to live nearby, and can even live abroad, having someone local can sometimes make things easier. Being able to attend appointments, deal with paperwork, or step in quickly can be simpler when they are close by. However, what truly matters is that they are organised, reliable, and able to manage the practical side of the role when needed.

Trust and character

Who would you trust as an Attorney or Deputy? It is really important to choose someone you trust. An Attorney or Deputy should be responsible, sensible, and capable of managing affairs while also considering your needs, preferences, and wishes when making decisions on your behalf. They should always put your best interests first.

How Pinney Talfourd can help

Choosing the right person may feel daunting, but taking the time to think it through can bring real peace of mind.

Whether you are planning ahead with an LPA or supporting someone who may need a Deputy, you do not have to navigate the process alone. Our dedicated Court of Protection team is here to offer guidance, answer your questions and simplify the process.