The Court of Protection has a discretion as to who it appoints as a deputy for property and affairs matters and it will be preferential, and in the best interests of the incapacitated party, to appoint a relative or friend who will understand their wishes and feelings and encourage their closer participation in decision-making. Where there is no one to act the local authority will be appointed as the deputy of last resort.
Local Authority deputies are used to dealing with benefits, social issues and managing the affairs of those who do not have any one to act for them and are obliged to act within a fixed costs regime. This will often mean that the council incurs additional costs to provide an invaluable public service. By comparison, the services of a legally qualified Professional Deputy can cost more than twice as much.
Recent budgetary constraints and overburdening of work within council settings have seen Local Authorities seek to pass more matters to Professional Deputies to manage. Any case where the local authority considers a Professional Deputy may be more appropriate must be approved by the Court of Protection. Where a Local Authority deputy is appointed this requires an application to the court for the discharge of the current deputy and the appointment of the new deputy. The Court of Protection has confirmed that the discharge of the deputyship appointment is not an automatic right, even if the deputy withdraws their consent to act, and it requires the Court of Protection to weigh up all the factors and decide if the transfer is in the best interests of the incapacitated party.
In the case of Cumbria County Council v A [2020] EWCOP 38 (16 July 2020) it became apparent that Local Authorities must take care that the criteria they deploy for selecting matters to transfer to a Professional Deputy are not infringing the Equality Act or discriminatory in nature. The case concluded that these are not factors for the Court of Protection to consider in reaching their decision.
When the court comes to consider an application by a deputy to be discharged from the role it will, as I have analysed above, arrive at its decision by focusing on the impact on P of either granting or refusing the application. When approaching its task, the court will consider whether the application is consistent with the objectives of the MCA i.e., whether or not the application is motivated to promote P’s best interests in accordance with the principles that I have identified. If the application appears to be driven by arbitrary or discriminatory criteria devised, for example to save costs, then the court (if it identifies them) will take them in to account to whatever degree is appropriate when coming to its decision. This will not be in consequence of a public law style review of compliance with Equality legislation, but rather the application of the principles of the MCA. The issue here is not one of jurisdiction (see N v A CCG [2017] UKSC 22 ) but of how the application should be approached within the framework of the Mental Capacity Act 2005.
The case also sets out some guidance on where it might be appropriate to discharge a Local Authority deputy and appoint a Professional Deputy;
- Modest assets will usually dictate a preference for a Local Authority deputy to act.
- Substantial assets lend to professional deputy management, if the costs are proportionate
- Complex assets will usually be managed by a professional deputy
- The court will consider difficult relationships as a factor for transfer
- If there is a conflict with the deputy continuing to act
- If the person will not work with the Local Authority
Local Authorities may consider whether there are cases that would be better managed by a Professional Deputy. Understandably Local Authority resources are limited and there will be cases that carry significant risks and exposure to legal issues with property, shares, investments or business concerns.
In cases where the Local Authority has not made an application to be appointed deputy but is considering external referral to a professional deputy the case of Re OT [2020] EWCOP 25 http://www.bailii.org/ew/cases/EWCOP/2020/25.html offers some guidance. The Court of Protection has indicated that it is happy with Local Authorities forming relationships with trusted local firms of solicitors for the purpose of referral and it maybe that Professional Deputies are prepared to offer consultation on the kind of cases that would be acceptable by the court for transfer. I take many referrals from social workers, in cases where it is recognised that there will be legal challenges and believe that in the long term placing the matter with an effective legal practitioner can often present costs savings for the client as the matter is dealt with quickly and at the right skill level.
A professional deputy also has additional protection in place against any financial loss to the client. All professional deputies are required to take out a security bond which insures against financial loss and their firm also carries professional indemnity insurance. A mistake within the Local Authority setting is more complicated to deal with and will incur further expense to rectify.
In conclusion a Local Authority needs to be careful when developing a policy to select service users that would be better served by a Professional Deputy. A blanket policy may be discriminatory. Appointments of Professional Deputies made in Individual cases, selected because they present legal challenges, financial complexity, conflict and relationship difficulties should be approved by the court without difficulty if they are done so in the best interests of the individual.
