A Lasting Power of Attorney (LPA) is arranged in advance while someone still has mental capacity, so someone they trust can make decisions later. The Court of Protection steps in after capacity has already been lost and no LPA exists it can make a decision or appoint a deputy. We act in Court of Protection cases on the health and welfare side.
People often mix up three different things: a Power of Attorney, the Court of Protection and a deputyship. They are connected, but they are not the same, and which one applies depends mostly on timing and whether the person still has mental capacity.
Here is the difference at a glance.
| Mental Capacity Law | What it is | Who sets it up | When it applies | Does it involve a court? |
| Lasting Power of Attorney (LPA) | A legal document appointing people you trust to make decisions for you | The person themselves, while they still have capacity | Made in advance; used if capacity is later lost | No registered with the Office of the Public Guardian |
| Court of Protection | A specialist court that makes decisions for people who lack capacity | An application to the court, often by family, a carer or the local authority | After capacity is lost, or where capacity is in dispute | Yes it is the court |
| Deputyship | Authority the Court of Protection gives a “deputy” to make ongoing decisions for someone | The Court of Protection, on application | After capacity is lost, where no LPA exists | Yes, the deputy is appointed by the court |
One important note before we go further: we do not set up powers of attorney, and we do not handle property, finance or deputyship applications. Our work is in the Court of Protection on health and welfare matters, and that is the focus of the guidance below.
An LPA is a legal document that lets a person (the “donor”) choose one or more people to make decisions on their behalf if they later lose the capacity to make those decisions themselves.
There are two types of lasting power of attorney:
An LPA must be made while the person still has capacity, and it has to be registered with the Office of the Public Guardian before it can be used. It does not involve the Court of Protection.
You may also come across an older Enduring Power of Attorney (EPA). These could only be created before October 2007 and cover property and finances only, but a valid EPA can still be used.
Because an LPA is arranged in advance, it is only an option if it was put in place in time. We do not prepare or register LPAs; setting one up is handled by a private client or wills solicitor.
The Court of Protection is a specialist court for England and Wales that makes decisions for people aged 16 and over who lack the mental capacity to make particular decisions for themselves. It works under the Mental Capacity Act 2005.
It can make a one-off decision itself, or appoint a deputy to make ongoing decisions. Its role spans two broad areas: property and financial affairs, and health and welfare such as where someone lives, the care they receive and medical treatment.
Everyone involved must act in the person’s best interests, and the court’s purpose is to protect people who cannot protect themselves. This is where our work sits: we represent families and individuals in health and welfare cases before the Court of Protection.
A deputyship is what happens when the Court of Protection appoints someone a “deputy” to make decisions for a person who lacks capacity, usually because no LPA was ever made.
Like LPAs, deputyships come in two types: property and financial affairs, and health and welfare. A deputy’s powers are set by the court, and the deputy is supervised by the Office of the Public Guardian.
Deputyship for property and financial affairs is the most common type, and it is a separate process from the health and welfare work we do. We do not make deputyship applications; where a financial deputyship is needed, that is dealt with by firms that handle property and finance.
The simplest way to understand these options is to ask one question: has the person already lost the capacity to make the decision?
In other words, a Power of Attorney is something you arrange before it is needed. The Court of Protection is what helps once that window has closed. That timing is usually the whole difference between the two.
This is the situation many families find themselves in: a relative has lost capacity through dementia (including Alzheimer’s disease), a brain injury, a stroke or a serious mental illness and no LPA was ever put in place.
When that happens, it is too late to make an LPA, because the person can no longer understand and agree to it. The decisions still need to be made, though, so the law provides another route: an application to the Court of Protection.
Depending on what is needed, the court can:
On the health and welfare side, these applications often deal with questions such as where a person lives, contact with family, day-to-day care and medical treatment. Where a decision cannot wait, an emergency application can be made to the court.
This is exactly the work we do. If a loved one has lost capacity and no power of attorney exists, we can advise on and handle a health and welfare application to the Court of Protection.
We are a specialist team acting in health and welfare matters before the Court of Protection, supporting families and individuals across England and Wales.
To be clear about what we do and do not do:
Many health and welfare Court of Protection cases qualify for non-means-tested legal aid, and we can check whether that applies to you. You can read more about our Court of Protection work and our health and welfare cases. If capacity itself is in question, our mental capacity page explains more.
A Power of Attorney is set up in advance by someone who still has capacity, so their chosen attorneys can act later. The Court of Protection steps in after capacity is lost, either making decisions or appointing a deputy. The main difference is timing.
Both let someone make decisions for another person. An attorney is chosen by the individual in advance through an LPA; a deputy is appointed by the Court of Protection after capacity is lost, usually because no LPA exists.
No. An LPA can only be made while the person still has the capacity to understand and agree to it. Once capacity is lost, the route is an application to the Court of Protection instead.
It covers both property and financial affairs and health and welfare. We act only on the health and welfare side, for example, decisions about care, treatment and where someone lives.
You are not required to have one, but these cases can be complex and emotionally difficult, and legal aid is often available for health and welfare matters. A specialist solicitor can guide you through the process.
If a loved one has lost capacity and you are trying to work out the right step, we can help you understand your options and take action on the health and welfare side of the Court of Protection. Call us on 0116 2745 252, or get in touch through our contact page for compassionate, specialist advice.