Attorneys and Deputies – Removal and Appointment by the Court

Attorneys and Deputies – Removal and Appointment by the Court

The  Court of Protection’s preference is obviously to appoint family members in Deputyship matters, so it is worth considering a recent case,  DC TT and ST v MA and PB [2015] EWCOP 49, where an application was made by the Public Guardian to have a Lasting Power of Attorney for Property & Financial Affairs (LPA) revoked due to the “careless and irresponsibly” used power under the same.  At the same time, an application was made to have a Deputy appointed.

The two attorneys were the son and daughter of the person who had created the LPA.  They had effectively used their mother’s funds for their own ends. This included selling their mother’s home of many years, moving her and using the proceeds to pay off a mortgage on the daughter’s property and to purchase a new house for their mother.  The daughter moved into the new house and the ownership was also divided between the mother and her attorneys in breach of their duties to their mother.  The property had previously been in her sole name.  They had therefore given themselves a share of her home to which they were not entitled and the act of doing so was not in their mother’s best interests.

The Judge had to explore the appointment of family members as Deputies.  This was due to the application of a third brother who wanted to be appointed Deputy, either solely or together with an Officer of the Public Guardian Deputy.

The son was turned down for appointment. Senior Judge Lush on this occasion felt that the son was motivated in part out of a desire to seek revenge upon his siblings, but also to preserve his own potential inheritance. This, of course, would mean that he also would not acting in his mother’s best interests but in his own interests  as a potential beneficiary of her estate.

It was also clear that there was clear potential for friction in the family. The suggestion that he should be appointed jointly with a Panel Deputy was also rejected. This was because the Judge felt in the circumstances that the son would be more of an impediment to decision making than an assistance.

Although, of course, it is always unfortunate when families cannot agree on a way forward, so much so that some substantial arguments  result in quite marked family divisions, but this is perhaps compounded when it involves a need for Deputyship applications to be made.

Again although it was noted that the Court’s preference is for a family member to be appointed, applicants must be clear that any issues concerning their relationship to the rest of the family, including of course the person on whose behalf they would be making decisions, can act as a bar to a successful application.

If you have any questions on being appointed as a Deputy or objecting to an application in relation to a Deputyship Order, then please contact Associate Solicitor, James Trescothick-Martin

 

Image by Ben Sutherland under a creative commons licence.