Calculate the risk

The Court of Protection found itself in the spotlight again recently when Cathy Watson, the mother of a girl severely injured at birth, was found guilty of plundering her daughter's damages award. She was sentenced earlier this week, and handed down a five and a half year prison sentence. Her partner, Robert Hills, who admitted his wrongdoing, was handed down a term of three years and four months.

This was a terrible abuse of a catastrophically injured young girl awarded a substantial sum (£2.6m) to cover care for the rest of her life. There are reportedly only enough funds left for a few years and she will then have to be funded publicly, which should considerably affect the quality of her care.

It's not the first time such abuse has been revealed, but this one is particularly shocking. Why was Cathy Watson in a position to perpetrate the crime? Why wasn't a professional deputy appointed?

Anyone can be appointed as a deputy by the Court of Protection. The applicant has to submit a declaration to the court, who must be satisfied they are a fit and proper person to act. I do not know how much the applications are scrutinised, but the primary focus is on whether the applicant has been made bankrupt or has judgment debts.

The court will always order that the proposed deputy takes out a bond to protect the vulnerable party against financial abuse. But it is almost impossible for a lay deputy to take out a bond for more than £1m, and this would, of course, have been insufficient in this case.

The deputy's authority in the terms of their order can be restricted. However, when appointing a deputy, the court tries to strike a balance between providing them with sufficient flexibility to be able to carry out their role without applying to the court every time they want to spend funds, and provide sufficient protection for the vulnerable party.

This case highlights the need to make sure that the right deputy is appointed in high value damages claims. It is uncommon for a family member to be appointed in such circumstances. The court has said it prefers the appointment of a professional in damages cases, at least for the first few years after settlement.

Full protection

In such cases, appointing a professional is not going to make the protected party worse off financially. When a damages award arises out of negligence, the costs of the professional acting as the deputy can be built into the value of the claim. So long as the professional deputy has adequate indemnity cover, the claimant is fully protected.

The family is usually relieved to have a professional appointed. Acting as the deputy in a high value damages case is a time-consuming and onerous responsibility. Being a parent or spouse in circumstances such as these is invariably a full-time and exhausting role and the additional duty of acting as the financial guardian is neither desirable nor welcomed.

I appreciate some families object to the imposition of a solicitor or other professional as the financial controller of their child's damages award. They find it belittling to have to ask for funds. However, in my experience, as long as the deputy deals with the issues that arise sensitively and involves the family in financial decisions, as indeed they should to fulfil their duties under the Mental Capacity Act and the code of practice, these concerns dissipate swiftly.

Deputies are supervised, of course. This is the role of the Office of the Public Guardian. The deputy must account every year for all the funds they receive and spend on behalf of the protected party. But abuse still takes place.

The OPG is under pressure. There are some 30,000 deputies appointed, and it lacks the resources to do the job properly; outgoing staff are not replaced and more work is carried out by fewer people. I have to wonder whether it has the ability to properly scrutinise the thousands of deputyship accounts received each year.

The families that I deal with are, generally speaking, the most devoted and selfless people possible. Nevertheless, the risk always exists.

Brian Bacon is a partner at Thomson Snell and Passmore

He writes a regular Court of Protection blog for Private Client Adviser