Lasting Power of Attorney vs Guardianship: Understanding Your Options

Lasting Power of Attorney vs Guardianship: What You Need to Know

People often confuse Lasting Power of Attorney (LPA) with guardianship, or assume they are the same thing. They are not — and understanding the difference is important because it affects who makes decisions for you or your loved ones, and how much control you have over the process.

This guide explains both options clearly, so you can make informed decisions for your family.

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The Fundamental Difference

The core distinction is simple:

• An LPA is voluntary. You choose who makes decisions for you, while you still have mental capacity.
• Guardianship is imposed. A court decides who makes decisions, usually because no LPA was put in place beforehand.

Feature	Lasting Power of Attorney	Guardianship (Deputyship)

Who decides	You choose your attorney	The court appoints a deputy
When created	While you have mental capacity	After capacity is lost
Your involvement	Full — you design the arrangement	None — you cannot participate
Cost to set up	£74 (myLPA) + £82 OPG registration	£1,000–£5,000+ in court fees and legal costs
Time to set up	Weeks (registration)	4–12+ months (court process)
Ongoing costs	None	Annual supervision fees (£320+)
Flexibility	You set preferences and restrictions	Court sets the terms
Can be changed	Yes, while you have capacity	Only by court application

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Understanding Lasting Power of Attorney

An LPA is a legal document you create while you have mental capacity. It lets you appoint one or more trusted people (attorneys) to make decisions on your behalf if you ever lose the ability to make them yourself.

Key Features of an LPA

• You choose your attorneys — the people you trust most
• You set the terms — including preferences, restrictions, and conditions
• You decide the scope — Property & Financial Affairs, Health & Welfare, or both
• You can name replacement attorneys — in case your first choice cannot act
• It reflects your wishes — because you created it yourself

Types of LPA

There are two types:

Property and Financial Affairs LPA — covers bank accounts, bills, property, investments, and financial decisions

Health and Welfare LPA — covers medical treatment, care arrangements, where you live, and daily welfare decisions

Most people create both types to ensure comprehensive coverage.

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Understanding Guardianship (Deputyship)

In England and Wales, what many people call "guardianship" for adults is actually a Deputyship — an order from the Court of Protection that appoints someone to make decisions for a person who has already lost mental capacity.

Guardianship in the strict legal sense applies mainly to children (through the Children Act 1989) or in limited contexts under the Mental Health Act 1983. However, many people use the term "guardianship" when they mean deputyship, so we will cover both.

Court of Protection Deputyship

When someone loses mental capacity without an LPA in place, their family must apply to the Court of Protection for a deputyship order. This is a formal court process.

The process involves:

Completing a detailed application form (COP1)

Providing a medical assessment of the person's capacity (COP3)

Preparing a deputy's declaration (COP4)

Paying the application fee (currently £371)

Notifying relevant people

Waiting for the court to process the application

Possibly attending a court hearing

Waiting for the court order to be issued

Providing a security bond (for property and affairs deputies)

Paying ongoing annual supervision fees

The total cost typically ranges from £1,000 to £5,000+ when you include solicitor's fees, court fees, medical assessment fees, and the security bond.

Guardianship Under the Children Act

For children under 18, guardianship is appointed through a Will or by the court. A guardian takes over parental responsibility if both parents die. This is a different legal concept from an LPA, which applies to adults making their own advance arrangements.

Guardianship Under the Mental Health Act

Section 7 of the Mental Health Act 1983 allows a local authority to apply for guardianship of a person with a mental disorder. This is a specific power used in mental health contexts and is quite different from an LPA.

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Why an LPA is Almost Always the Better Choice

If you have the opportunity to create an LPA — meaning you currently have mental capacity — it is almost always preferable to relying on the guardianship/deputyship route. Here is why.

1. You Choose Who Makes Decisions

With an LPA, you personally select the people you trust. With a deputyship, a judge who does not know you or your family makes the appointment. While the court usually appoints a family member, this is not guaranteed — and family disputes can lead to a professional deputy being appointed instead.

2. Massively Lower Cost

Cost Element

LPA (myLPA)

Court of Protection Deputyship

Service/legal fees	£74 per LPA	£1,000–£3,000+ solicitor fees
Registration/court fee	£82 per LPA	£371 application fee
Medical assessment	Not required	£100–£300
Security bond	Not required	£100–£500+ per year
Annual supervision	None	£320 per year
Total first year	£156 (one LPA)	£1,891–£4,491+
Total over 5 years	£156	£3,491–£6,591+

Over five years, a deputyship can cost 20 to 40 times more than an LPA.

3. Much Faster

An LPA can be created in 15 minutes and registered in a few weeks. A deputyship application typically takes 4–12 months — during which time your family may be unable to manage your finances or make care decisions.

This delay can cause serious problems:

• Bills go unpaid
• Bank accounts may be frozen
• Property cannot be sold to fund care
• Medical decisions are left to healthcare professionals rather than family

4. Greater Flexibility and Control

With an LPA, you can include detailed preferences and restrictions. You can specify:

• How your attorneys should make decisions (jointly, severally, or a combination)
• Specific wishes about your care or finances
• Conditions on when certain powers can be used
• Replacement attorneys if your first choice cannot act

A deputyship order is set by the court, with the court deciding what powers the deputy has. The deputy must also seek court approval for many significant decisions, adding cost and delay.

5. Less Stressful for Your Family

Creating an LPA is a calm, planned process. Applying for a deputyship happens during a crisis — when a loved one has already lost capacity. Your family will be dealing with the emotional impact of your incapacity while simultaneously navigating a complex court process.

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When Guardianship/Deputyship is Necessary

Despite the advantages of an LPA, there are situations where the deputyship route is unavoidable:

• The person has already lost mental capacity and no LPA was created in advance
• A child needs a guardian appointed through a Will or court order
• Mental health guardianship is needed under the Mental Health Act
• An attorney is not acting properly and the court needs to intervene

If a loved one has already lost capacity, applying for a deputyship may be your only option. In this case, we recommend seeking legal advice to navigate the court process.

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What About Guardianship for Children?

If your concern is about who would look after your children if something happened to you, this is a separate matter from LPAs. You should:

Name guardians in your Will — this is the most important step for parents

Create LPAs for yourselves — to ensure your own affairs are managed if you lose capacity

Consider life insurance — to provide financial support for your children's guardians

An LPA does not appoint guardians for children — that is done through your Will. However, having an LPA ensures that your own affairs are in order, which benefits your children indirectly.

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Frequently Asked Questions

Is guardianship the same as Power of Attorney?

No. Power of Attorney is a voluntary arrangement you create while you have mental capacity. Guardianship (or deputyship for adults in England and Wales) is imposed by a court, typically when someone has already lost capacity.

Can I set up an LPA for someone who has already lost capacity?

No. An LPA can only be created while the person (the donor) has mental capacity. If they have already lost capacity, the only option is to apply for a deputyship through the Court of Protection.

How much does a deputyship cost compared to an LPA?

An LPA costs £74 through myLPA plus the £82 OPG registration fee. A deputyship typically costs £1,000–£5,000+ to set up, plus ongoing annual supervision fees of £320 or more.

Can a guardian override a Power of Attorney?

In most cases, no. An LPA that was validly created and registered takes priority. However, the Court of Protection can revoke an LPA if an attorney is not acting properly, and may then appoint a deputy instead.

What happens if I do not have an LPA and I lose capacity?

Your family would need to apply to the Court of Protection for a deputyship order. This process typically takes 4–12 months and costs £1,000–£5,000+. During this time, they may not be able to access your bank accounts, sell property, or make important care decisions.

Can I be both a guardian and an attorney?

Yes. A parent could be appointed as guardian in a Will (for their children) and also act as an attorney under an LPA (for the LPA donor). These are separate legal roles.

Is a deputyship permanent?

A deputyship lasts as long as the person lacks capacity or until the court revokes it. The deputy must submit annual reports to the OPG and pay annual supervision fees.

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Do Not Leave It to the Courts

The message is clear: if you have the capacity to create an LPA, do it now. It is cheaper, faster, and gives you complete control over who manages your affairs.

The alternative — a court-imposed deputyship — costs thousands of pounds, takes months, and removes your ability to choose who makes decisions for you.

Avoid court-imposed guardianship — create your LPA for just £74.

Create Your LPA Today — Just £74 →

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Protect Your Family's Future

Every day without an LPA is a day your family is at risk of the costly, stressful deputyship process. It takes just 15 minutes to start protecting them.

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