The Court of Protection will appoint a “deputy” to manage someone’s affairs when an individual lacks capacity to manage their own affairs and there is no valid power of attorney in place. However, when making the appointment the Court must consider what would be in the patient’s best interests, which is the underlying principle of the Mental Capacity Act 2005. Whilst the Court will usually try and appoint a family member as the deputy whenever possible, there will be circumstances when it will be necessary for a professional or other third party to be appointed as the deputy when it is not in the patient’s best interests to appoint a family member.
The Court of Protection recently considered this question in an application that came before it in the case of Re BIM, DM and AM  EWCOP 39. In this case, two family members (the patient’s brother in law (AM) and his wife (DM)) made an application to the Court to be appointed as deputies for the patient (P) in place of P’s husband (RM) who was no longer capable of performing his duties as P’s deputy for property and financial affairs following a stroke. The applicants only named RM and their own son as the respondents to the application and failed to name P’s sons or give them notice of the application.
The application was opposed by one of P’s sons (MD) who made various allegations of misconduct on the part of the applicants and who contended that, in the circumstances, the appointment of the applicants as P’s deputies would be contrary to P’s best interests and that two named solicitors should instead be appointed as P’s deputies on a joint and several basis.
MD argued that there were procedural irregularities in the application and, in particular, the failure to notify himself or his brother of the application was a deliberate attempt by the applicants to prevent an objection to the appointment being raised. It was also alleged that the applicants had removed all contents from P’s property, had transferred the ownership of the property to themselves and had granted an assured shorthold tenancy of the property to their son and daughter in law at a rent significantly below market value. The Court directed the applicants to file evidence which they failed to do.
In his judgment, Senior Judge Lush, provided some useful guidance regarding the circumstances in which the Court would not contemplate appointing a family member as a deputy, which included:-
– Where the proposed deputy had physically, emotionally or financially abused P;
– Where there was a need to investigate dealings with P’s assets prior to the matter being brought to the Court’s attention and the proposed deputy’s conduct was the subject of that investigation; and
– Where there was ongoing friction between various family members and the proposed deputy which was likely to interfere with the proper administration of P’s affairs
In this case, it was clear that there were questions that needed to be answered and that the applicants’ conduct was a cause of concern which needed to be fully investigated by an independent professional deputy who would be best placed to carry out an investigation into the issues relating to the alleged misconduct, communicate with any relevant third parties and take any necessary steps that were required to restore P’s estate to the appropriate level.
The Court held that it was in P’s best interests for the application to be dismissed and for the two named solicitors to be appointed jointly and severally as P’s deputies for property and affairs, in these circumstances where there were allegations of misconduct on the part of the applicants. The Court also departed from the general rule on the issue of costs and ordered the applicants to pay their own costs.
This case highlights that the overriding principle of “best interests” will ultimately determine how the Court exercises its discretion when considering any application that is made for the appointment of a deputy and that any allegations of misconduct on the part of the proposed deputy will be taken seriously. It is also important to ensure that the correct procedure in making such an application to the Court of Protection is followed both at the outset and also during the course of proceedings to ensure that no adverse consequences arise.
Gabrielle Medland is a member of the firm’s Private Client team based in our Exeter office. If you would like more advice or assistance in making a Will or administering an estate please contact Gabrielle on 01392 210700 or email@example.com or any of her colleagues in the Private Client teams in Exeter, St Austell and Truro.