- January 19, 2021
- By Rebecca Walsh
- 0 comments
When can P’s property and affairs deputy be discharged?
The Court of Protection was established by the Mental Capacity Act (2005). The court will take responsibility for P when there is evidence confirming they lack the requisite capacity to manage their property and affairs. Whilst the court has authority to appoint a deputy, they delegate the role of supervising a deputy to the Office of the Public Guardian.
There are a multitude of reasons why a deputy could be discharged. These include but are not restricted to:
- P has regained capacity;
- The relationship between the deputy and P or P’s family has broken down;
- The deputy is no longer able to act in the best interests of P;
- P’s funds have depleted to a level that a professional deputy is no longer required; or
- On the death of P.
P has regained capacity
In the event that P is believed to have regained capacity, the first step is to arrange a capacity assessment. The assessment will need to be completed by a neurologist, GP, social worker or another registered practitioner on a COP 3 form.
Should P be assessed as having capacity, the deputy is under a duty to discharge the order. During the application process the deputy should have consideration for P’s capital and where it derived from, especially if P’s funds resulted from a personal injury compensation. Should this be the case, the funds will need to be placed in to a Personal Injury trust. The purpose of this would be to continue ring fencing P’s funds for means tested benefits purposes. Initially, the trust will usually require the appointment of a professional trustee. However, P or a family member can also be appointed as a lay trustee.
If a trust is not appropriate, advice and support will need to be given to P on how they will manage their finances when the discharge order is granted. For the first time in a while, P will have access to their estate and will be responsible for managing their own property and affairs. Whilst this may be what P has longed for, it can be an overwhelming process.
The application to discharge the deputy, can be made by P or the deputy. If the court is satisfied that P has capacity, an order will be made under rule 24.5 of the Court of Protection Rules 2017.
The relationship has broken down
In the unfortunate event that the relationship has broken down between P or P’s family and their deputy, the deputy can be discharged and replaced.
The application can be brought by any interested party, including P themselves. The burden of proof is on the applicant to show that on the balance of probabilities why a change in deputy would be in the best interests of P.
Whilst deliberating an application to replace the existing deputy, the court will have consideration for all the relevant circumstances. This will include the reasons for the application, the wishes of P and their family, the impact the transfer will have on P, the size of P’s estate and who would be most suitable to take over the role.
The deputy can no longer act in P’s best interests
S16(8) MCA 2005 states that the court may, in particular, revoke the appointment of a deputy or vary the powers conferred on him if it is satisfied that the deputy:
- Has behaved, or is behaving in a way that contravenes the authority conferred on him by the court or it is not in P’s best interests; or
- Proposes to behave in a way that would contravene that authority or would not be in P’s best interests.
When applying to be appointed as deputy, a deputy is required to complete a declaration as to his or her stability on a COP 4 form. Should a deputy breach one of his undertaking’s, it could be argued that the deputy can no longer act in P’s best interests.
Examples of this could be if the deputy is deemed to have acted incompetently, the deputy has misappropriated P’s funds, acted unlawfully or been declared bankrupt.
An application can be brought by any interested party, including P and also the Office of the Public Guardian.
P’s funds have depleted
Sometimes P’s funds may have depleted to such a low level that it no longer justifies a professional deputy’s appointment. It is unlikely to be in P’s best interests to charge professional fees against their estate, if the estate is of nominal value. In these circumstances, it might be appropriate to consider a lay deputyship appointment.
Alternatively, it may be sufficient for a benefits appointee to be appointed in the deputy’s place. A benefits appointee is someone who is appointed by DWP to manage a persons benefits, because they are unable to manage them themselves. The responsibilities of a benefits appointee include:
- Applying for benefits;
- Collecting the payments and managing the money; and
- Informing DWP of any changes in a persons circumstances.
On the passing of P, a deputyship order will automatically come to an end. No application is required, although the Court must be notified and might give some directions on outstanding matters, such as costs.
P’s best interests, wishes and feelings will always be central in any decision that the court undertakes.
If you have any questions about discharging a deputy, contact our Court of Protection team and we will be happy to assist you.
*Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*
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