In whose best interest? – New Law Journal 27/02/2019

04 / 03 / 2019

The article was originally published by the New Law Journal on 27 February 2019.

The duties of a deputy appointed by the Court of Protection are not to be taken lightly, warn Ann Stanyer & Jemma Goddard

Where an adult has lost their mental capacity due to brain injury or otherwise, someone must be appointed to manage their property and financial affairs. If they do not already have a lasting power of attorney appointing someone, the Court of Protection will appoint a deputy. If there is a suitable family member who can act, they will be considered for the appointment provided they are over 18, consent to the appointment and are not being paid to care for the individual. They must have the necessary skills, knowledge and commitment to carry out the tasks and duties of a deputy.

These duties include complying with the Mental Capacity Act 2005 (MCA 2005) statutory principles, which include making decisions in the patient’s best interests, having regard to the MCA 2005 Code of Practice, and only making decisions authorised by the court. Other duties include a duty of care, a duty not to delegate, a duty of confidentiality, a duty to keep accounts, and a duty to keep the patient’s money and property separate from their own.

The court order appointing a deputy for property and affairs will typically include authority to:

  • take possession or control of the patient’s property and affairs and exercise the same powers of management and investment as the patient would otherwise have, subject to any terms and conditions set out in the order;
  • make provision for the needs of anyone who is related to or connected with the patient and whom he/she might be expected to provide for;
  • make gifts to any charity that the patient might have been expected to benefit; and
  • make gifts on customary occasions to persons related to or connected with the patient, provided the value is not unreasonable in the circumstances particularly with regard to the size of the patient’s estate.

How can a deputy ensure that the patient’s affairs are properly administered? The first court order will also require the deputy to keep statements, vouchers, receipts and other financial records, and submit an annual report to the public guardian. In addition, it will require the deputy to pay a set sum as security, and no actions can be taken under the deputyship until that security is in place.

Untoward activity

It is essential that the deputy puts in place strict financial controls from the outset. They must register the court order with the financial institutions with which the patient has accounts or investments. While all bank accounts should remain in the patient’s name, there should be a new mandate allowing the deputy to make and receive payments. Most banks have a delegated authority team specialised in dealing with power of attorney and deputyship cases. The deputy will need to make sure that bank statements, cheque books and correspondence are sent to them on a regular basis. They have a duty of confidentiality and must ensure that all financial information is kept secure and not shared with any unauthorised person. Bank statements and other financial reports must be checked as soon as they are received to ensure that nothing untoward has happened since the last statements. All the financial papers must be kept so that at the end of each year, accounts can be prepared.

Problems have arisen where deputies have exceeded their authority. In Re GM [2013] COPLR 290, the deputies used the patient’s funds to pay for their extravagant lifestyles and were penalised by the court for it. In Re AFR [2015] EWCOP 73, [2015] All ER (D) 109 (Nov), the deputies’ annual report referred to loans to the deputies, including to fund the legal fees for one of the deputies’ divorce proceedings. The report also documented payments to the deputies, and shopping and restaurant bills debited from the patient’s accounts even though he was resident in a care home.

Onerous task

How can the deputy ensure that they are acting in the best interests of the patient? Section 4 of MCA 2005 explains that a person making a best interests decision must not make it merely on the basis of the person’s age or appearance, or a condition or aspect of his behaviour, which might lead others to make unjustified assumptions about what might be in his best interests.

All the relevant circumstances must be considered, including the following points which should be noted:

  • the likelihood that the patient will at some time have capacity in relation to the matter in question;
  • the patient should be permitted and encouraged so far as reasonably practicable to participate as fully as possible in any act done for him and any decision affecting him; and
  • where the determination relates to life-sustaining treatment, the deputy must not, in considering whether the treatment is in the patient’s best interests, be motivated by a desire to bring about the patient’s death

The deputy should also consider, so far as is reasonably ascertainable, the patient’s past and present wishes and feelings, the beliefs and values that would be likely to influence his decision if he/she had capacity, and the other factors that he/she would likely consider if able to do so.

The views of anyone named by the patient as someone to be consulted on a particular matter and anyone engaged in caring for the person or interested in his/her welfare, should all be taken into account.

The role of a deputy is an onerous one, and deputies would be well advised to take advice and guidance from practitioners at the outset to ensure that their management of the patient’s finances and property does not cause problems at a later stage.