Local authority deputies – the pros (and a con?)

In Re EU (Appointment of a Deputy) [2014] EWCOP 21 (a case that missed the cut for the August Mental Capacity Law Newsletter), Senior Judge Lush commented further upon the considerations going to the appointment of a family member as deputy (in this case for property and financial affairs).

At paragraphs 34 ff, he commented thus:

“34.  In continental countries where the legal systems are based partly on Roman law, family members traditionally had a public duty to act as a curator (their equivalent of a ‘deputy’) for someone who lacked the capacity to manage their property and financial affairs. No one could refuse to act as a curator, though not everyone had the time or the inclination, or the ability or the energy to take on a responsibility of this kind, and numerous grounds for exemption, known as ‘excuses’, developed whereby a family member could avoid being appointed as a curator. 

35. In England and Wales there has never been a public duty for family members to act as a deputy or its antecedents but, equally, family members have never had an automatic right to be appointed. 

36. The Court of Protection has a discretion as to whom it appoints and has generally preferred to appoint a relative or friend as deputy (as long as it is satisfied that it is in P’s best interests to do so), rather than a complete stranger. 

37. The main reason for preferring family members to strangers, as a starting point, has been respect for their relationship, which is now reflected in Article 8 of the European Convention on Human Rights, but there are other, practical reasons for choosing a family member. 

38. A relative will usually be familiar with P’s affairs, and aware of their wishes and feelings. Someone with a close personal knowledge of P is also likely to be in a better position to meet the obligation of a deputy to consult with P, and to permit and encourage them to participate, or to improve their ability to participate, as fully as possible in any act or decision affecting them. And, because professionals charge for their services, the appointment of a relative or friend is preferred for reasons of economy. 

39. There are, of course, circumstances in which the court would never contemplate appointing a family member as deputy. I gave some examples in Re GW, London Borough of Haringey v CM [2014] EWCOP B23, at paragraphs 28 and 29. 

Senior Judge Lush also endorsed the submission made on behalf of the local authority applying to be appointed EU’s deputy:

“43. I also accept Carol Richards’ submission that there can be distinct advantages in having a local authority act as deputy. These include: 

a. considerable hands-on experience in dealing with the property and financial affairs of adults who lack capacity to manage their own affairs;

b. more rigorous checks and balances against financial misconduct and other forms of abuse than are possible in cases where a lay deputy is appointed;

c.  membership of a professional association, the Association of Public Authority Deputies (‘APAD’), which provides guidance on professional ethics and best practice; and

d. a greater awareness of: 

(i) the provisions of the Mental Capacity Act 2005; 

(ii) the application of the principles in section 1 of the Act; 

(iii) the requirement, where necessary, to assess the person’s capacity to make a particular decision at a particular time; 

(iv) the criteria and procedure for making a best interests decision; 

(v) the contents of the Mental Capacity Act Code of Practice, particularly relating to the duties of a deputy; and

(vi) the ongoing case law emanating from judgments such as this.”

Whilst not disagreeing that the propositions set out above are accurate as a general rule, I would also note one potential disadvantage – unlike other deputies, a local authority deputy is not, as a general rule, required to provide security by way of a bond.   If, contrary to all expectations, a local authority behaves in a fashion that is contrary to the Act and the Code and causes P financial loss, that loss cannot be made immediately good by calling in a bond and recovery of any loss will therefore be a more complex and (therefore) inevitably more costly process.