We are now almost a week into the restart of possession claims after the stay was lifted and there are a number of new rules which have been brought in...
Contested deputyship applications
Our Contentious Probate and Court of Protection teams have had recent success in relation to contested deputyship applications in the Court of Protection.
A deputy is appointed by the Court of Protection to make decisions on behalf of someone who lacks mental capacity to make their own decisions. A deputy can be a lay person, such as a relative, or a professional, such as a solicitor, or a combination of the two.
The person who lacks capacity is often referred to in proceedings as “P”, or the patient. A deputy can be appointed to deal with P’s property and financial affairs, their health and welfare, or both. In practice, a health and welfare deputyship is rarely used.
In the first matter, P was an individual living with dementia. P resided in a care home and lacked capacity to manage his property and affairs. P did not have a Power of Attorney, which is a common means of delegating authority for a person to deal with the financial affairs and/or health and welfare decisions on behalf of another person. A Power of Attorney can only be created while a person has capacity. Unfortunately, many people do not have a Power of Attorney and, in these situations, it is necessary for the Court of Protection to step in to appoint a deputy.
The relevant Local Authority for P contacted P’s family solicitor and requested that a deputyship application be made for P’s property and financial affairs. P’s spouse had two children from a previous relationship and died before P. Therefore, loosely speaking, they were P’s step-children. Both step-children objected to the application, which meant that the matter was allocated to the Property and Affairs pathway in the Court of Protection, and a dispute resolution hearing was listed. This is now standard in disputed deputyship applications and the aim of a dispute resolution hearing is to try and resolve matters between the parties at an early stage, without recourse to further lengthy and costly litigation.
The essence of the objections filed by the step-children were that they both felt that it would be more appropriate for an alternative, independent solicitor to be appointed as P’s deputy. In light of the comments made in the objection, P’s family solicitor, the original applicant, suggested that a solicitor at Buckles be appointed. Both step-children agreed to this appointment. It was clearly in P’s best interests for this matter to be resolved consensually and efficiently, without the costs of a hearing. In the circumstances, the Court approved the Order agreed between the parties and vacated the hearing.
Again, in the second matter, P is an individual who was living with dementia, resides in a care home and lacks capacity. Given that dementia is a progressive illness, P was not expected to regain capacity. An application was made to the Court by the applicants (a solicitor at Buckles and a family member of P), to be appointed as joint and several deputies.
A family member filed an objection to this application, indicating an intention to oppose the making of the order, and seeking a different order, the nature of which was unspecified in the objection. The matter was allocated to the Property and Affairs Pathway and listed for a dispute resolution hearing. P had a large estate in terms of capital assets, but insufficient cash assets to meet care home fees. It would therefore be in P’s best interests for a deputy to be appointed so that P’s property and affairs can be managed on a daily basis.
P’s spouse died with no children or other surviving blood relatives, and the only relative to be in regular contact with P was the applicant. It was felt that, with the support of a professional deputy who would give the applicant the benefit of professional experience and knowledge, the applicant was a clear candidate to be appointed as P’s deputy. In reality, all the respondent was seeking was to be kept up to date as to health and welfare decisions in respect of P. On this basis, the appointment was agreed prior to the hearing and the Court made a deputyship order in the terms of the initial application.
These matters demonstrate the importance of obtaining specialist advice if you have applied to be a deputy and you have received an objection. As these cases show, matters can often be resolved satisfactorily between the parties without the need to incur a great deal of legal costs which, ultimately, will be paid by P’s estate.