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Are lay deputies always the best option?

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As well as the initial application to the Court of Protection, the ongoing obligations of a deputy are designed to be onerous to ensure that the best interests of the individual whose finances are being managed are at the forefront when decisions are made

Senior Judge Lush in the case of RE BM [2014] recently highlighted some of the reasons why it is not always in the best interests of an incapacitated person for a friend or family member to be appointed as deputy to manage their property and financial affairs.

Although the courts have historically preferred the appointment of a family member as deputy because of the close relationship that often exists, there are many instances where the appointment of a professional deputy may be more appropriate. Examples stated by Senior Judge Lush include where there is a conflict of interest between the interests of the individual without capacity and the proposed deputy, where the proposed deputy has an unsatisfactory record of managing his/her own affairs or where there is ongoing friction between the proposed deputy and other family members which is likely to interfere with the proper administration of that individual’s affairs. Given the court’s preference to appoint a sole deputy, I should imagine that it can be very difficult for siblings, for example, to decide amongst themselves who is best placed to be appointed as deputy for mum/dad and that conflict often arises as a result.

The deputy is therefore required to keep a record of any decisions that they make such as taking investment advice and/or selling/purchasing property. In addition, they are required to keep copies of any documents relating to decisions they have made such as receipts, bank statements and letters and reports from health agencies or social services. It is common practice for the Court of Protection to insist that a report is completed once a year to account for the decisions made by the deputy and provide evidence regarding how the individual’s funds have been spent. It is not uncommon following the completion of such reports for the Court of Protection to raise additional queries which can be time consuming although necessary.

In an era where many of us have very busy lives it can be difficult to find the time to devote to managing your own finances yet alone a loved one’s to the best of our abilities.

Our Private Client team are all members of Solicitors of the Elderly and specialists in mental capacity issues including deputyship applications.
If you would like assistance with a personal application to become appointed as a deputy or would like more information about the benefits of appointing a professional deputy please contact Clare King on 0113 336 3363 or via email at clare.king@clarionsolicitors.com

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