When a person loses the mental capacity to make decisions for themselves (and they haven’t already put a power of attorney in place), those who care for them may need to apply to the Court of Protection (COP) to appoint a Deputy. In this article I will briefly sets out the differences between a lasting power of attorney (LPA), enduring power of attorney (EPA) and a Deputy. I will then give a sketch of how the Court of Protection works.
Powers of attorney
There are three ways for an individual to delegate authority that allows someone else to deal with aspects of their affairs:
1. Ordinary powers of attorney – these are most typically used for commercial purposes allowing another person to execute documents or handle financial matters on behalf of the donor. A simple example would be the use of a power of attorney to appoint a proxy to act on a shareholder’s behalf.
2. Enduring powers of attorney: The EPA specifically provides for mental incapacity and gives the holder power to manage property and financial affairs. Since October 2007 (when the relevant Act was repealed) it has not been possible to create a new EPA. Existing EPAs though, continue to be valid.
3. Lasting powers of attorney: The LPA was introduced by the Mental Capacity Act 2005 (MCA 2005) as a replacement to the EPA. There are two types, that which grants authority in relation to the donor’s property and financial affairs, and that which grants authority in relation to the donor’s health and welfare.
It is worth emphasising that powers of attorney are only available to a person who has mental capacity when they set them up. If a person loses capacity without having put one of the above in place, these routes are effectively closed. Something to bear in mind when estate planning.
The Role and Powers of a Deputy
Other than the Court of Protection itself, when a person lacks capacity and has not created a LPA (I will refer to such a person as P), there is no one who can make decisions for them in relation to their welfare or property unless a deputy is appointed by the COP under s16(2)(b) MCA 2005. There are two main types of deputy appointment; that which deals with P’s property and financial affairs and that which relates to P’s personal welfare. The former is the usual type, the latter only being required in the most difficult cases.
The precise responsibility and powers of a deputy are specified in the COP order appointing them. A deputy can be appointed to deal with a single decision (for example, the sale of a home to pay for care) or to deal with broader decisions on an ongoing basis. Deputies are overseen by The Office of the Public Guardian (OPG) who maintain a deputy register, assess the nature of P’s assets and decide what level of supervision should be applied to the deputy in each case.
In conjunction with the order, there are five statutory principles that deputies must adopt. These are described in s1 MCA 2005.
1. A person must be assumed to have capacity unless it is established that they lack capacity.
2. A person is not to be treated as unable to make a decision unless all practicable steps to help them to do so have been taken without success.
3. A person is not to be treated as unable to make a decision merely because they make an unwise decision.
4. An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in their best interests.
5. Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.
The preference (other than in a limited number of circumstances) of the court, is for a family member or close friend to be appointed over a professional deputy. The OPG maintains a panel of those willing to act as professional deputies for property and affairs. Cases are referred to a panel member where there is no one suitable or willing to act as a deputy for P.
When Appointment of a Deputy is Disputed
When an application to appoint a deputy is disputed, the COP will undertake to hear the dispute. The management and progress of cases, the pathways and types of hearing available are set out in the Court of Protection Rules 2017 (COPR 2017). There is not the scope here to detail these, suffice to say that COPR 2017 works in much the same way as the Family Procedure Rules 2010 do for Family matters or the Civil Procedure Rules 1998 do for civil matters. Indeed, COPR 2017 states that in any case not expressly provided for in the rules, the court may apply the Family or Civil Procedure Rules instead.
When it comes to determining the outcome of a disputed application; the COP applies a balance sheet approach. In DG and others v Peter  EWCOP 3, the court described its decision-making processes when determining which of three competing brothers (two applying jointly and one applying to be sole deputy) should be appointed as a deputy for their incapacitated father (P). The judge weighed the relative strengths and weaknesses of the brothers in relation to the role of deputy.
Factors where the three brothers ranked equally were:
• Their willingness to act.
• Their ability to act.
• Their relevant qualifications.
• Their personal relationship with P.
• P’s past and present wishes.
• The terms of P’s will.
• Whether P would be expected to pay for the deputy’s services.
• Whether security would be given by the deputy.
• Any conflicts of interest.
However, differences which the judge considered to be of “magnetic importance”, were significant enough to tip the balance in favour of the joint application. These were:
• Their location (where they lived) in relation to P.
• Their ability to interact with others, particularly with P’s carers and the management at the care home where P resided.
In two other COP cases (Re: BM  EWCOP B20 and London Borough of Haringey v CM  EWCOP B23) the court provided a non-exhaustive list of reasons why it might not be in the best interests of P to appoint a family member as a deputy. These situations would include:
• Physical, psychological, financial or emotional abuse of P by the proposed deputy.
• Dealings with P’s assets that necessitate an investigation of the proposed deputy’s conduct.
• A real conflict of interest between the interests of P and the proposed deputy.
• The proposed deputy has an unsatisfactory track record in managing his own affairs.
• There is ongoing friction between the proposed deputy and other family members which is likely to interfere with the proper administration of P’s affairs.
• P is likely to be subjected to undue influence by the proposed deputy.
The judge also confirmed (in Re BM) that the court generally prefers to appoint an independent professional deputy, rather than a family member, in cases where P has been awarded substantial personal injury damages.
The Powers of the Court of Protection
The COP is a superior court of record (of the same level as the High Court) and as such, can set precedents. The jurisdiction of the COP is established by the Mental Capacity Act 2005 (MCA 2005) under which the following are included:
1. An incapacitated adult (16 years or over) who is resident in England and Wales
2. The property of an incapacitated adult as above, whose property is located anywhere in the world.
3. The property of a child under the age of 16 who is resident in England and Wales (or who is resident anywhere in the world but habitually resident in England and Wales) if the court considers the child would lack decision making capacity at age 18.
The MCA 2005 describes in broad fashion, the powers of the COP which are detailed in COPR 2017. The powers are many but those that are pertinent here include:
• Making declarations, for example, as to the capacity of P to make a specific decision.
• Making decisions for P.
• Resolving disputes concerning LPAs and EPAs.
• Appointing (and terminating the appointment of) deputies.
I place these in this order for good reason. The MCA 2005 states that a decision made by the COP is preferable to the appointment of a deputy to make such a decision. The appointment of a deputy is only made when deemed appropriate, given the preference for the court to make more difficult or complicated decisions.
Bringing and defending claims in relation to the appointment of a deputy is a specialist area of law. If you require advice or assistance with a disputed deputy case, do not hesitate to contact firstname.lastname@example.org.