Where a person lacks capacity (“P”), the Court of Protection has the power to appoint a person to make decisions on their behalf. This person is known as a deputy.
A deputy is usually given a variety of powers by the Court of Protection in relation to the property and affairs, including the control, management, acquisition and disposition of property of the person who lacks capacity. A deputy may have the power to carry on any profession, trade or business on behalf of the person who lacks capacity; this may include discharging their debts and obligations and conducting legal proceedings in their name. The scope of the deputy’s authority will be set out in the Deputyship Order.
Does the Court of Protection also have the power to remove and replace a deputy?
The Court of Protection also has the power to remove a deputy by virtue of section 16(8) of the Mental Capacity Act 2005. The Court may suspend or discharge the appointment of a deputy if it is satisfied that the deputy:
- has behaved, or is behaving, in a way that contravenes the authority conferred on him by the Court or is not in P’s best interests; or
- proposes to behave in a way that contravenes the authority conferred on him by the Court or is not in P’s best interests.
As such, if a deputy acts outside the scope of his or her powers and/or is misappropriating and mismanaging property of the person who lacks capacity, it is possible to seek their replacement. This is not a decision the Court of Protection would make lightly. The Court will consider whether it is in the best interests of the person who lacks capacity to have the deputy removed and replaced. The cases of Re Rodman [2012] and Re CJ [2015] are good examples of when the Court of Protection would consider removing a deputy, if at all.
Re: Rodman [2012]
Mrs Rodman, and her late husband, Mr Rodman, were both USA citizens who had settled in London with significant assets in England. At the time of Mr Rodman’s death, Mrs Rodman suffered from advanced Alzheimer’s and consequently lacked capacity.
In 2009, Mr L (a solicitor experienced in Court of Protection matters and the administration of estates), was appointed as Mrs Rodman’s deputy to manage her property and affairs. In 2010 he was also appointed as an administrator of Mr R’s estate. In the same year, the Court of Protection ordered Mrs Rodman to be transferred to New York. Her daughters gave an undertaking that they would apply to be appointed as welfare guardians of Mrs Rodman and that they would appoint a financial guardian in the USA. Mrs Rodman was moved to Nevada to live in Las Vegas.
In January 2011, Mr S was appointed as the general guardian of Mrs Rodman’s estate in the USA. He applied to the Court of Protection to remove Mr L (solicitor) as Mrs Rodman’s deputy for property and affairs in England. Mr S (general guardian) sought to have himself appointed as Mrs Rodman’s deputy in England instead. He also sought an order to replace Mr L (solicitor) as Mr Rodman’s personal representative.
The decision
In determining what would be in Mrs Rodman’s best interests, the Judge considered all the relevant circumstances, as required by s.4(2) of the Mental Capacity Act 2005. The Judge then went on to consider the following factual matters:
- Mr L (solicitor) was better qualified than Mr S (general guardian) to act as Mrs Rodman’s deputy;
- Mr S’ (general guardian) hostile approach during proceedings did not instil confidence in the Judge that he would be an appropriate deputy;
- The process of replacing Mr L (solicitor) would result in further costs being incurred;
- It would be inconvenient and expensive to have different people handling Mrs Rodman’s affairs and Mr Rodman’s estate;
- The Judge was suspicious that if Mr S (general guardian) was appointed as deputy for Mrs Rodman, he would also involve himself in Mr Rodman’s estate, creating not only a conflict but also additional costs to the estate and Mrs Rodman; and
- There would be other difficulties for a replacement to overcome if they were to take over as a deputy ‘midstream’.
The Judge therefore held that it would not be in Mrs Rodman’s best interests to have her current deputy (Mr L (solicitor) removed and replaced. The application brought by Mr S (general guardian) was therefore dismissed.
Re: CJ [2015]
CJ a person who lacked capacity had been awarded compensation in the sum of £300,000. She lived with her partner, MP, and they had been together for 25 years. In 2010, a Judge appointed MP to be CJ’s deputy for property and affairs.
By 2014, MP (the deputy) was overdue in providing annual financial reports, had failed to pay Office of the Public Guardian supervision fees, refused to let the Court of Protection General Visitor visit CJ (person who lacked capacity) and sent a bill of over £1,000 to the Office of the Public Guardian for costs he claimed he had incurred and which he expected the Office of the Public Guardian to pay.
The Office of the Public Guardian applied to the Court Of Protection for an order that MP (the deputy) provide full accounts for all his dealings and that, if he fails to provide satisfactory accounts, he should be removed as deputy. MP (the deputy) failed to comply with this order. As a result, the Court of Protection ordered MP (the deputy) to submit a final account and an order was also made to remove MP as deputy and for a panel deputy to be appointed in his place.
MP (the deputy) applied for this order to be reconsidered, arguing that the Office of the Public Guardian’s demands were disproportionate and that he had not mismanaged CJ’s (person who lacked capacity) compensation.
The decision
The Judge held that although there was no dishonest misappropriation of CJ's (person who lacked capacity) funds, MP (the deputy) had failed to comply and co-operate with the Court Of Protection and the Office of the Public Guardian. He had failed to keep all financial records and submit a report to the Office of the Public Guardian as and when required. To turn a blind eye to MP's refusal to comply with his duties would undermine the safeguarding work carried out by the Office of the Public Guardian. The Judge was satisfied that MP (the deputy) had behaved in a way that contravened the authority given to him and confirmed that MP ought to be removed as CJ’s (person who lacked capacity) deputy.
Conclusion
The Court of Protection has wide powers, including the power to remove a deputy, if necessary to do so. The case of Re Rodman [2012] suggests that the Court of Protection will only depart from a previous order where there is a risk to a person who lacks capacity or a good reason to do so. If it can be clearly shown that a deputy has behaved, is behaving or proposes to behave in a way that contravenes the authority conferred on him; or is not acting in the best interests of the person who lacks capacity, then the Court is likely to restrict or completely remove the deputy’s powers.
