The Court of Protection may be asked to exercise its powers in respect of a person’s property and financial affairs if they lack mental capacity to make decisions themselves. Here Sam Firth, Court of Protection Executive and Report Manager, explains the process for changing a deputy for property and financial affairs.
The court can be asked to make a specific decision, or decisions. Alternatively, it may appoint a deputy to be the decision-maker on an ongoing basis. A deputy may be a friend or family member, it may be a local authority, it may be a professional (almost always a solicitor) or it may be a trust corporation. This article does not set out to describe the role of a deputy, or the scope of their decision-making powers, but instead to describe the processes and issues involved in changing a deputy.
The Court of Protection is the only body that can appoint, remove or replace a deputy
It is the only body that can decide who the deputy should be. This applies as much to the identity of a replacement deputy as it does to the deputy appointed in the first place. When making this decision – or indeed any decision about a person who lacks mental capacity – the court’s focus will be on what is in that person’s best interests. Best interests decision-making is central to the work both of the court, and of deputies.
When making any best interests decision, the court will consider the wishes and feelings of the person they are making the decision for. The court will also listen to the views of people who are involved in that person’s life, whether they are a family member, a friend, a carer or some other professional. It is important to bear in mind that the person’s wishes and feelings, and the views of other people, may not necessarily determine the answer to the question. This is as true about the identity of a deputy as it is about any other issue. The court is not required to appoint the deputy that the person would like, or that their family would like. In the same way, the court is not obliged to remove a deputy even if this is what the person, or their family might want to happen. The court must be persuaded that the appointment of a new deputy is in the person’s best interests.
In terms of the first appointment, if the proposed deputy is a willing and appropriate person (and if nobody objects), then it is usually a straightforward process of nominating a prospective deputy that the court will then appoint. The question may not be as clear cut when the court is asked to remove an existing deputy and to appoint somebody else in their place. Much will come down to the circumstances, and these will be different in every case.
Application to change a deputy
There are many reasons why an application might be made to change a deputy. One of the most straightforward scenarios is one where a named, individual deputy no longer wishes to be the deputy, for whatever reason. Nobody can be forced to be a deputy; they must be willing. If a person wants to retire from deputyship, the court cannot stand in their way and will appoint a replacement. Another scenario – though one which is mercifully rare in professional deputyships – might be if there has been wrongdoing on the part of the deputy. This could take many forms, but generally comes down to the deputy not having acted in the person’s best interests, and/or having failed to keep to the strict recordkeeping and reporting obligations required of every deputy. A deputy’s failing may be stark and obvious, for example if they have misappropriated the person’s money. Again, in a scenario like this, one could expect that the court will be quick to discharge the deputy and appoint their replacement. Matters may not be quite so straightforward if facts are disputed, or if the application is made for a different reason.
Breakdown in the relationship between the deputy and the person for whom they act
An application to replace a deputy might be made if there has been a breakdown in the relationship between the deputy and person they act for, or between the deputy and that person’s family. For an application to succeed, there must be evidence not that the relationship has soured, but that it has broken down irretrievably. The court will expect all parties to make efforts to repair the relationship. The court will generally only entertain an application to replace a deputy on the grounds of irretrievable relationship breakdown if it is satisfied that there is no realistic prospect of the deputyship being brought back on track. In an application based on breakdown, the court will want to understand the nature of the breakdown, as well as what has been done to try to repair it. There could be one or more reasons underlying a failed, or failing relationship and again, each case turns on its own unique facts.
Disagreements over decisions made
Disputes can often arise if a deputy has made decisions that the person they act for disagrees with, or that their family disagrees with. These are often the thorniest issues in a deputy replacement application. It is important to recognise that although deputies are required to explore their client’s wishes and feelings, and to seek the views of those closely connected with the person or the decision, the decision itself is for the deputy alone to take. Very often, deputies may make best interests decisions that their client, or others in the family disagree with. The court discourages – and will not support – what has become known as deputy shopping, where this means searching for a deputy who, it is hoped, will bend to pressure or accede to the wishes of a client or their family. In short, “I don’t like what is happening” is usually not enough to discharge a deputy, unless there is also a valid criticism that could be made about decision making, or the deputy/deputyship generally. Equally though, there are cases where personalities have clashed, and the atmosphere has become so toxic that it is impossible for the deputyship to continue effectively. This could happen without there necessarily having been any wrongdoing on the deputy’s part. In those cases, the court could well be persuaded that it is in the person’s best interests for a fresh start to be made with a new deputy.
Office of the Public Guardian
All deputies are supervised by the Office of the Public Guardian, or OPG. The OPG may well have an involvement in issues connected with a change of deputy, and this will certainly be the case if the OPG has received a complaint about a deputy, or expressions of concern about a deputy not acting in their client’s best interests.
Our lawyers have extensive experience of deputy appointment and deputy replacement applications, both where the applications are agreed, and where they are disputed. Some of our deputyship clients have come to us having reached the end of the line with a previous deputy. We also have extensive experience of acting for family members in disputed applications relating to their loved one’s deputyship.
If you would like to speak to one of our lawyers about an application to replace an existing deputy, please get in touch today and either email Sam Firth or telephone him on 07508 897 860. We are here to help you.