Britney Spears’s recent case, quite rightly, has had a lot of media coverage here in the UK and has raised questions about how the UK Deputyship process works by comparison.
Britney Spears’ conservatorship concluded after 13 years. Judge Brenda Penny ruled that it was in Britney’s best interests to have her conservator and father, Jamie Spears removed from the Legal Agreement. The Judge decided to bring the entire conservatorship to an end on the basis that Britney was capable of making her own decisions regarding her property and affairs. However, a caveat was included that an accountant must be installed as a temporary conservator to advise Britney moving forwards.
A conservatorship differs from a deputyship in so far as the latter is UK law and the former US Law – Conservatorship is not a principle under English Law, but a deputyship is largely the English equivalent.
The Court of Protection was created by the Mental Capacity Act in 2005. The role of the Court is to protect individuals who lack capacity and make rulings relating to their care, welfare, and financial affairs.
The Court of Protection has the power to:
- Determine whether or not a Lasting Power of Attorney (“LPA”) is valid;
- Give directions about using an LPA;
- Remove an attorney under an LPA;
- Make health and welfare decisions, such as whether artificial nutrition and hydration (ANH) should be withdrawn from a patient or where an individual should live;
- Appoint a deputy, to manage health and welfare, property and financial affairs or both, for a person who lacks capacity
The law that governs issues relating to mental capacity in England and Wales is the Mental Capacity Act 2005 (“MCA 2005”).The MCA 2005 is a piece of legislation which sets out the test for whether an individual has capacity to make a decision and, in the event that an individual is found to lack capacity, the MCA 2005 sets out the actions that can be taken on that person’s behalf. There are two key areas of an individual’s life which are identified as requiring some form of management in the event of a lack of capacity. These are:
- Property and Financial Affairs
- Health and Welfare
When an individual is found to lack capacity to make a decision, or a set of decisions, the Court of Protection has a number of options available. It can:
- Make a one-off order for a single decision, such as where an individual should live;
- Appoint a deputy – someone who is authorised to make decisions on behalf of another person – for a limited purpose, set-period of time or a single set of decisions.
- Appoint a deputy with authority to make decisions on a broader set of matters on an ongoing basis.
In line with the principles of the MCA 2005, the Court of Protection will always make the ‘least restrictive’ decision.
The involvement of Court of Protection is becoming commonly recognised. However, by comparison the removal of a deputy or being discharged from the Court of Protection is potentially less recognised and understood.
A UK Deputyship, which is not time limited, may come to an end for one of three reasons:
- The person regains capacity;
- The person passes away (protected party or deputy); or
- A new deputy is appointed.
The person regains capacity
When a person who has a deputy regains capacity, an application must be made to the Court of Protection to end the current deputyship, together with supporting medical evidence to show they can manage their own property and affairs. An appointed deputy should always keep the question of capacity under consideration and should not make decisions on behalf of someone who has capacity to make the decision themselves.
If a person has successfully regained capacity, an order will be made under rule 24.5 of the Court of Protection Rules 2017
A deputy cannot be paternalistic. Even if a person is vulnerable that is not a reason to keep a deputyship in place and other ways to support a an individual with capacity should be explored. If a person has a personal injury or clinical negligence settlement, they should be advised on the benefits of having a personal injury trust.
The person regains passes away (protected party or deputy)
On the death of the person who requires a deputy, the authority of the deputy ceases, and the person’s financial affairs are managed by the executors or personal representatives for the estate. The deputy may be required to provide information for the estate administration.
In the event the deputy passes away, it will be necessary to apply to the Court of Protection for a new deputy to be appointed.
A new deputy is appointed
There are circumstances in which a new deputy is required. For example, because a deputy retires, there has been a contentious matter that has damaged the relationship between the deputy and their client, or because there has been fraudulent activity.
The Office of the Public Guardian provides detailed guidance for professional attorneys and deputies in the form of practice notes. They have also established a set of minimum standards for professionals that should be adhered to.
A deputy is adjudged to not be acting in a person’s best interests if they have behaved or are behaving in a way that contravenes the authority conferred on him by the court or it is not in a person’s best interests. An application must be made to the Court of Protection seeking the discharge of one deputy and the appointment of another.
In the event of the relationship between the deputy and the protected party breaking down, care should be taken to consider if the relationship can be repaired. It can be costly to change the deputy and involves a lengthy Court application process. It is acknowledged that it can be difficult for family members to engage in the deputyship process and have a professional making decisions about a loved ones’ property and affairs, but simply disagreeing with a decision made by a professional deputy is not a justified reason to replace them. The Court will be mindful of what is in the protected person’s best interests.