A recent case provides a useful summary of the different factors that the Court will take into account when considering a deputyship application.
When an individual lacks capacity to manage their own affairs and there is no valid power of attorney in place, then it will be necessary for an application to be made to the Court of Protection for a deputy to be appointed to manage the patient’s affairs on their behalf (deputyship application). However, the choice of deputy is at the Court’s discretion and there is no guarantee that a family member would be appointed. But what happens when there is no agreement within the family as to who should be appointed in the role of deputy and there is more than one contender?
In a recent case that came before the Court of Protection (DG and others v Peter [2014] EWCOP31) Senior Judge Lush identified a number of factors to be taken into account when considering which of three competing brothers should be appointed as a deputy for their father (P) who had become incapable of managing his affairs. Two of the brothers had initially made an application to be appointed as deputies jointly and separately for P but this was opposed by a third brother who also made an application to be appointed as a sole deputy.
The Court weighed up a number of factors when applying the balance sheet approach to determine the choice of deputy to be appointed and assessed the relative strengths and weaknesses of the three brothers against certain criteria when assessing their suitability for acting in the role as deputy for P.
The Court decided that the factors which applied equally to all three brothers included:
• willingness to act
• ability to act
• relevant qualifications
• personal relationship with P
• P’s past and present wishes
• terms of P’s Will
• whether P would be expected to pay for the deputy’s services
• whether security would be given by the deputy
• conflicts of interest.
However, there were two factors where the brothers ranked unequally and which the Court considered to be of “magnetic importance” in the case. These factors were geographical location in relation to P and their ability to interact with those providing P’s care, including P’s carers and the management of the care home where P resided. The factors which were of “magnetic importance” in this case persuaded the Court to make the order in favour of the joint application.
The case provides a useful summary of the different factors that the Court will take into account when considering a deputyship application, particularly when there is disagreement within the family as to who should be appointed in the role as deputy and the Court is faced with competing claims from different family members. It also highlights the importance of putting in place a Lasting Power of Attorney and selecting an attorney of your choice whilst you have the capacity to do so rather than leaving this important decision to the Court to decide on your behalf.