Deputyship and the Court of Protection Explained

If a family member loses mental capacity without having made a lasting power of attorney, nobody can simply step in. Someone must apply to the Court of Protection to become their deputy, a slower and more closely supervised process than acting under an LPA.

What Deputyship Is and When It Is Needed

Deputyship exists for one specific situation: someone has lost the mental capacity to manage their own affairs, and no lasting power of attorney, or still-valid enduring power of attorney, was ever put in place. Under the Mental Capacity Act 2005, nobody, not even a spouse, civil partner, or adult child, automatically has the legal authority to make decisions on that person's behalf just because they lack capacity. Instead, someone who wants to act for them, often a close relative, must apply to the Court of Protection to be appointed as a deputy. The Court of Protection is part of HM Courts & Tribunals Service and deals specifically with decisions for people who cannot make them for themselves, whether because of dementia, a brain injury, a severe learning disability, or another condition affecting capacity. Deputyship only applies in England and Wales; Scotland and Northern Ireland have their own separate systems, covered below.

The Two Types of Deputyship

As with a lasting power of attorney, deputyship splits into two distinct roles covering different kinds of decisions, and the court treats them very differently in practice.

A property and financial affairs deputy is by far the more commonly appointed of the two, since bank accounts and bills cannot simply wait. A personal welfare deputy is different: the Court of Protection generally prefers to make a one-off order for a specific welfare or medical decision rather than hand ongoing authority over someone's care to a deputy, and will usually only appoint one where there is an identified, continuing need, such as unresolved disagreement within a family about where someone should live or how they should be cared for.

Applying to the Court of Protection

An application to become a deputy is made to the Court of Protection using its official forms, and the court usually deals with applications on paper rather than by holding a hearing, although a hearing can be listed if the application is contested or complex, which carries an additional hearing fee. The applicant has to show that a deputy is genuinely needed and that they are suitable for the role; the court can also require a security bond from a property and financial affairs deputy, sized to the value of the estate they will be managing, as protection against mismanagement. Applying currently carries a Court of Protection application fee, and a new deputy also pays a one-off OPG assessment fee once appointed; gov.uk sets out the current fee amounts, which should always be checked directly rather than relied on from a secondary source. A reduced fee or exemption can be available where the person who needs a deputy has a low income or receives certain benefits. Realistically, this is described by advice charities as a lengthy and costly process, and it typically takes considerably longer than registering an LPA, in part because the court has to satisfy itself about necessity and suitability before making an appointment, rather than simply registering a document the person made in advance.

Supervision by the Office of the Public Guardian

Once appointed, a deputy does not simply act unsupervised. The Office of the Public Guardian supervises deputies on an ongoing basis, and every deputy must send an annual report to the OPG setting out the decisions they have made and, for financial deputies, the accounts they have kept. Deputies are legally required to act in the best interests of the person they represent, following the same core principles set out in the Mental Capacity Act 2005 that apply to attorneys under an LPA, and they can be asked to account for their decisions at any point. An annual supervision fee is payable to the OPG for as long as the deputyship continues, with the level of supervision, and the fee charged, varying according to the size and complexity of the estate being managed; a lower fee applies where supervision needs are minimal. This ongoing oversight is more intensive than the supervision an LPA attorney receives, reflecting the fact that a deputy was never personally chosen by the person they are acting for.

One-Off Decisions Without Full Deputyship

Not every situation that reaches the Court of Protection needs an ongoing deputy. Where only a single decision has to be made, such as authorising a particular medical treatment, resolving a specific disagreement about care, or approving the sale of one property, the court can make a one-off order instead. This avoids handing over ongoing authority where it is not actually needed, and it is the route the court generally prefers for personal welfare matters unless there is a genuine continuing need for someone to hold that authority on a lasting basis. The Court of Protection can also be asked to rule on a narrower, related question: whether a person has the mental capacity to make a specific decision at all, which is often the first issue that has to be resolved before any deputyship or one-off order can proceed.

Deputyship Compared With a Lasting Power of Attorney

The clearest way to understand deputyship is as the fallback that applies only because no LPA was made in time, and it compares poorly with an LPA on almost every practical measure. An LPA is made and registered while someone still has capacity, so they choose their own attorneys, decide how those attorneys must act, and can put both a financial and a welfare LPA in place well before either is needed. Deputyship, by contrast, only becomes available after capacity has already been lost, so the person who needs help has no say in who is appointed; the Court of Protection decides that. The process is also slower, since the court has to be satisfied that a deputy is necessary and suitable before making an appointment, where an LPA only needs straightforward registration with the OPG. Deputyship is generally more expensive too, once the application fee, assessment fee, ongoing annual supervision fee, and any security bond are added together, and it comes with closer, continuing supervision than an LPA attorney faces. None of this means deputyship is avoidable once capacity has already gone without an LPA in place; it means an LPA, made in advance, is the better route wherever it is still possible. See our guide to the lasting power of attorney for how to put one in place before it is needed.

Scotland and Northern Ireland: No Court of Protection

The Court of Protection is an England and Wales institution only; it has no equivalent role in the other two UK nations, each of which handles loss of capacity differently. In Scotland, there is no Court of Protection at all. Where someone loses capacity without a registered continuing or welfare power of attorney, an application is instead made to the Sheriff Court under the Adults with Incapacity (Scotland) Act 2000, for a guardianship order covering ongoing financial or welfare authority, or a more limited intervention order for a single decision. See our guide to power of attorney in Scotland for how guardianship fits alongside Scotland's own power of attorney system. Northern Ireland uses a different route again: controllership, administered through the Office of Care and Protection at the High Court, applies where someone has lost capacity without a valid enduring power of attorney in place. See our guide to power of attorney in Northern Ireland. None of the three systems can be substituted for one another, so a family dealing with property or care needs across more than one UK nation should check which regime actually applies before assuming England and Wales rules carry across the border.

This article is general information about deputyship and the Court of Protection in England and Wales, not legal advice, and it is not a substitute for taking advice on an individual situation. Whether deputyship is needed, which type applies, and how to apply, depends on the circumstances of the person who has lost capacity. Use the official gov.uk service to check current fees and start an application, or take advice from a solicitor, Age UK, or Citizens Advice if the situation is complex or contested.

Making a lasting power of attorney in advance avoids the need for deputyship altogether; see our guide to the lasting power of attorney. For the wider picture of wills, probate, and inheritance across the UK, see our UK wills and probate hub, part of our broader guide to United Kingdom law.