Disputes between a deputy and the family of the individual concerned, can escalate and become increasingly distressing if issues are not resolved. A ruling of the Court of Protection illustrates the extent to which difficult family members can cause intolerable tension for deputies and prompt them to apply to be discharged.
The Court of Protection disputes solicitors at Osbornes Law can advise both deputies and family members when tensions arise.
What is a deputy?
A deputy is someone appointed by the court to manage the property and financial affairs, or health and welfare (and sometimes both) on behalf of someone who lacks mental capacity to make such decisions themselves.
Family members or a close friend are often appointed under a deputyship, for the simple and obvious reason is that they invariably know the individual better than anyone else. Sometimes a professional deputy is preferred. The private client lawyers at Osbornes act as professional deputies for a number of clients, and also advise deputies on how best to manage an individual's affairs.
When things go wrong
Unfortunately, where a deputy is appointed to make decisions for an individual, there may be times when family members seek to oppose or undermine the deputy's authority. The deputy may eventually conclude that they have no option but to seek discharge from their deputyship.
In a recent case, the deputy had been appointed in 2019 in relation to the property and financial affairs of a child (now 12) who has suffered cerebral palsy since birth. This deputy wasn't the first; and there had already been significant tensions between the child's father and other family members and previous professional deputies.
Under the deputy's appointment, expenditure was limited to £190,000 on adaptations to the property. In August 2020, he asked the court for a further £15,000 to complete the property adaptations – and also asked to be discharged. The further sum of money was allowed but the court refused his application for discharge, partly as there had already been an exceptional turnover of professional deputies.
He then asked the court to reconsider his application for discharge, on the basis that there had been an irretrievable breakdown in his relationship with the child's family – particularly his father. He said the father was "intent on breaking down any relationship he has with a deputy".
What was decided?
Even though the parties considered it was in the child's best interests for the deputy to be discharged, the court said it must decide on this point. The court made clear that its 'default' response should not be to change deputies because of the costs implications, as well as the risk of being perceived as rewarding negative behaviour. This could undermine any future stability of the deputyship arrangement. So trying to salvage working relationships should be prioritised if that was possible. However, that was not possible in this case and the court found that it was not in the child's best interests that the deputy continue.
The next challenge for the court was the question as to who should be appointed instead. Appointing another professional deputy was the preference, but given the background it seemed inevitable that history would repeat itself. The court deemed neither the father nor the mother to be appropriate. The court decided to appoint two of the child's cousins (a tax officer and a solicitor) – but subject to various "safeguards and mitigations".
What should we do?
It is clear that where disputes arise between a deputy and family members, the priority should be on working to salvage the relationship if possible. Only then should formal steps be considered to have a deputy discharged and replaced.
You can read the judgment in Kambli v The Public Guardian [2021] EWCOP 53 here
Originally published 18 NOV 2021 .
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
