Professional deputies have a valuable role to play, says Brian Bacon

As we all know, the spectrum of Court of Protection work is a wide one and covers many different aspects of capacity issues. One area we have concentrated our practice on is in the area of acting as a property and affairs deputy for those who have an acquired a brain injury or suffered a birth trauma.

The question I want to touch on concerns the quandary often faced by families and PI/clinical negligence lawyers: who should be appointed as deputy to manage damages awarded to someone in these circumstances?

Close to home

We address this question when giving expert evidence as to the costs of having a professional deputy in place and it is an extremely important one. Senior Judge Lush considered the issues in a recent newsletter for the British Association of Brain Injury Case Managers (BABICM). He explains that the court traditionally preferred to appoint relatives instead of strangers, where possible.

The arguments put forward might include the fact that the family will know P, will be aware of past wishes and feelings, are on hand to meet P’s needs quickly and to encourage P to participate as fully as possible in the decision-making process. The issue of cost is also raised; a professional will charge for their services, but a family member cannot.

However, despite these good points there has been a shift in approach over the last 15 years or so. It is now appreciated that there are clear benefits why, in cases where someone has an acquired brain injury or suffered a birth trauma, a professional should be preferred over a family member. These reasons include:

• The value of the award. The task of acting as deputy is a daunting and onerous one for many relatives. This can be particularly so if they do not have experience of dealing with large sums of money (settlements can of course involve some very large figures) or of dealing with a lot of paperwork.

• Carer burden. The family will have already been through a traumatic time since the accident or birth; their lives have been turned upside down and they are often involved, to differing degrees, in caring for P. This burden often increases over time, as the person gets older and their care needs become greater. The last thing the family will want is to be involved in dealing with the finances as well.

• Saying no. It can certainly be the case that someone with a brain injury can be extremely demanding and difficult to deal with, making unreasonable demands – we have many! Where this is the case, family members may strive for the quiet life, and will find it very hard to say no to their requests, even if it is clear what is required to make a decision that is in their best interests. It is easier for someone removed from the day-to-day situation to say no.

• Conflict of interests and objectivity. A damages award is there to meet P’s needs and requirements. It is used to paying for – among many other things – the cost of care, accommodation, therapies and equipment. While I stress it is by no means a concern in every case, we certainly have situations where P’s family regard the fund a little like a family trust fund; they view it as a source of family income, and can be tempted to use the money for inappropriate expenditure. At the other end of the spectrum are those who are reticent to use the fund, because they fear it will be exhausted too soon; we certainly have families who are in this camp as well. They need to be regularly encouraged to spend the money, because it will not be in P’s best interests not to have the things they need while they are alive, only to leave a large estate for the family.

Professional practice

These few points are by no means exclusive, and there are other reasons why it is preferable for a professional to be appointed. In practice, we have a number of cases where a family deputy has asked us to take over because they can no longer cope.

In our view, it is important to bear in mind that the person who is asked to take over should have some experience of dealing with brain injury or birth trauma, and the impact it can have on the family. That understanding is vital to the professional’s role working as it should with the family and the wider care team.

Don’t forget that a professional can be appointed as the deputy for a few years post-settlement, but a family member could then take over in due course.

As a final point, it is key that these issues are explored and considered before settlement; the costs of the professional can be included as a separate head of damage in the personal injury or clinical negligence claim and it effectively becomes a self-funding exercise (subject to issues of contributory negligence). If it is only dealt with after settlement, it is too late. This is the worst of both worlds – a professional deputy in place charging fees and no provision for this in the damages award.

Brian Bacon is a partner at Thomson Snell & Passmore