There has been a great deal of talk recently regarding the suitability of Lasting Powers of Attorney (LPAs) and whether these provide adequate safeguards. I think it is good that a debate has been sparked but why aren’t we also looking at Court appointed deputies and in particular the conduct of some professional deputies?
Professional deputies tend to be solicitors that are well versed in the rules and jargon of the Mental Capacity Act. All deputies are supervised by the Office of the Public Guardian and professional deputies are required to submit their bills for independent assessment. However, I find that these safeguards are aimed at very particular types of misconduct and it is much more difficult to reprimand a deputy that is simply not very good or failing to act in a client’s best interests. In my opinion these professional deputies often go under the radar, particularly where a family is unlikely to have any past experience with the Court of Protection or working with other professional deputies.
Sometimes human instinct tells us not to question people in positions of authority or those who fall within the definition of a ‘professional’ because we perceive that what they say must be correct given their position or job title. A professional deputy satisfies both of these criteria and as a result their actions and decisions sometimes pass with little or no scrutiny.
I have experienced a range of different professional deputies and the impact that they have had on protected parties and their families. This has included some very good professional deputies but unfortunately also some that have fallen far short of the duties conferred upon them.
Whilst the issue of best interests is often subjective I think the starting point should be common sense and unfortunately I have heard stories of deputies making decisions that appear to be devoid of any sense or rationality. These might be strict financial decisions that fail to account for the person at the centre of the decision or wider concerns. Another common issue that tends to arise is difficulty getting hold of the professional deputy or members of their staff. This can be immensely frustrating for a client or family member when they need to discuss a pressing financial matter or issue that is causing them anxiety. The technical points and compliance governing professional deputies are of course very important but the client and/or their family don’t always see this side of professional deputyship, which is why it is so important that there is good communication in order to explain what is happening and why.
If you cannot get hold of your deputy or are concerned about decisions that they are making then I would suggest seeking independent advice from a solicitor. It may be that there is no reason for concern or you might find that after speaking to them the deputy in question has not met the standards that they are required to adhere to. In such circumstances or even if there has just been a break down in the relationship; it might be worth seeking a change in professional deputy. Most importantly, people should not feel as though they cannot challenge a professional deputy or the decisions that they make.