A deputy is very often required to manage a vulnerable person’s property and affairs when that person has lost capacity and there is not a Power of Attorney in place.
Since the vulnerable person is no longer able to appoint someone of their choice, the Court of Protection will appoint someone known as a Deputy to manage that person’s finances. The Court of Protection has the authority to do so under Section 16 of the Mental Capacity Act 2005.
Who will the Court of Protection appoint – the traditional approach
No one has an automatic right to be appointed as Deputy. The Court of Protection has a discretion as to whom it appoints and in coming to a decision, the Court of Protection will consider the vulnerable person’s best interests.
Very often, the person who wants to manage the vulnerable person’s finances will make an application to the Court of Protection requesting an Order appointing them as Deputy. In the majority of cases, the applicant is a family member or a close friend who is involved in the vulnerable person’s life.
Traditionally, the Court of Protection has preferred to appoint a relative or a friend of the vulnerable person instead of appointing a stranger. The main reason why such applicants are favoured by the Court of Protection is because they would usually have known the vulnerable person before that person lost their capacity. They would also be familiar with the vulnerable person’s wishes, feelings and their financial affairs and would therefore be in a better position to consult with the vulnerable person and encourage them to participate in making decisions.
Recent cases
However, in recent cases, the Court of Protection has expressed that it may not always be in the vulnerable person’s best interests to appoint a particular family member or a friend as Deputy. In Re BM (2014) EWCOP B20, Senior Judge Lush provided a non-exhaustive list of reasons as to why a family member should not be appointed as Deputy. These include:
a) The proposed deputy has physically, psychologically, financially or emotionally abused the vulnerable person;
b) There is a need to investigate dealings with the vulnerable person’s assets prior to the matter being brought to the Court’s attention, and the proposed deputy’s conduct is the subject of that investigation;
c) There is a real conflict of interest;
d) The proposed deputy has an unsatisfactory track record in managing his or her own financial affair; and
e) There is ongoing friction between various family members, which is likely to interfere with the proper administration of the vulnerable person’s affairs.
In such circumstances, the Court of Protection has indicated that it would prefer an independent professional deputy. It was also pointed out by Senior Judge Lush that where a vulnerable person has been awarded substantial compensation for personal injury or clinical negligence, the Court of Protection would prefer an independent professional deputy rather than a family member.
This judgment was considered by Senior Judge Lush in the subsequent case of London Borough of Haringey v CM [2014] EWCOP B23. The London Borough had made an application to be appointed as Deputy to manage the vulnerable person’s, GW’s, finances. GW was diagnosed with Alzheimer’s Dementia and had a history of Persistent Delusional Disorder. GW’s niece, CM, objected to the London Borough’s application on the grounds it would be in GW’s best interests for her to be appointed as Deputy since she lived close to GW’s home and had been looking after GW and helped him with his finances over the past few years.
The Court of Protection arranged for a Court of Protection Special Visitor to examine GW. During the course of the examination, GW was consistent in his negative views about CM and did not want her to control his finances. Although Senior Judge Lush acknowledged that GW’s views were not reliable, he was reluctant to override GW’s rights and expressed wish that CM should not be appointed as his Deputy. In addition, during the course of the proceedings, it transpired that CM had kept some of GW’s money for herself and had outbursts of ill temper from time to time.
Taking into account all these factors, it was held that it was in GW’s best interests for the London Borough to be appointed as Deputy. This case is another example of when the Court of Protection will not take the traditional approach of favouring a relative or a friend if it is not in the vulnerable person’s best interests.
Conclusion
If you are considering making an application to the Court of Protection to be appointed as Deputy and there is friction amongst family members, or if you wish to object to an application for a deputyship order, it is advisable to seek legal advice before you become party to the proceedings.
