Without reason

As we have said in previous blogs, the Court of Protection shoulders a great responsibility when making decisions on behalf of the most vulnerable in our society and especially when appointing a deputy. This is a vital role, and anyone acting as such, particularly a professional dealing with property and affairs, is often given wide-ranging authority. This is an essential tool to enable both the smooth running of the deputyship, and to prevent the court getting log-jammed with applications by deputies to make straightforward decisions.

In any decision being considered by a deputy, the wide authority they are provided is of course balanced with the statutory duty to act in P's best interests. While there is no statutory definition of 'best interests', the Mental Capacity Act 2005 clearly lays out the considerations that a deputy must turn their mind to, when deciding what is or is not in P's best interests. This covers, for example, considering P's past and present wishes and feelings, and those beliefs and values that P might take in to consideration if they had capacity to do so.

It is also an important part of the deputy's role, if practicable and appropriate, to consult certain persons and take their views into account. As well as P themselves, this includes anyone named by P as someone to be consulted on the matter in question, and/or anyone engaged in caring for P, or interested in their welfare. The latter category often includes family. It is certainly our experience that the relationship with the family can be vital to the smooth running of a deputyship.

So, particularly where there is a professional deputy, what happens when this relationship breaks down?

It can be difficult. Over the years, we have been involved in cases where the deputy's relationship with the family has become very strained for various reasons. In some instances, this has clearly been an issue with the deputy, such as where the family have been ignored entirely by the deputy who, for example, would not return calls, provide information where it has been requested, or had made decisions without consultation.

In other cases, it has been because the family simply do not like the decisions being made by the deputy, or it was felt that their views were being ignored.

Such circumstances can put the deputy in an awkward position, notably in the latter situation where they may believe they are acting in the best interests of P.

Open dialogue

It is possible the issues could be resolved through open dialogue with the family. This surely must be the starting point in trying to resolve any breakdown in relationship. The deputy should explain carefully, and sometimes repeat, the reasons for the decision. It can be enough to placate the family.

On other occasions, the court may need to be involved. Take, for example, a case where we are appointed as deputy for an elderly lady with dementia. We were appointed as a deputy of last resort, following a breakdown in relationship between the two children of P, and the revocation of an enduring power of attorney.

One of P's daughters in particular has, since our appointment, expected us to keep her in a lifestyle to which she was previously accustomed, which was the result of extremely generous gifts by her parents throughout her adult life. However, when faced with a request from one daughter for a substantial sum of money, our response - which we believed was clearly in P's best interests - was not met with overwhelming joy. Despite efforts to explain the reasons for our decision, it was clear the only way the matter was going to be resolved was through an application to the court.

In other cases, tension with the family can often make it very difficult for the deputy to carry out their role properly. This is particularly so in those cases where the family are heavily involved in P's care and day-to-day life. In those situations, where communication and consultation with the family is important, the deputy may come to a point where they are unable to carry out their duties under the Act effectively. The vital relationship with the family may have become so strained and difficult, that they are not able to consult effectively and it interferes with the smooth running of P's affairs.

No fault

This may not be any fault of the deputy. No matter how hard one tries, it can be a simple fact of professional life that the relationship with a client (or in this context, their family) can breakdown. In these situations, the deputy may need to consider their position carefully. A point may be reached where they cannot act in P's best interests because the family will not properly consult. Relationships are strained such that it takes enormous effort to reach a decision. Where a professional deputy is appointed, this can significantly increase costs and have a damaging effect on P's estate.

The deputy will need to balance these issues in considering their position, particularly if they are being called by the family to step down.

A couple of years ago, we were involved in a matter where, despite the clear breakdown in relationship with the family, the professional deputy resolutely refused to step down in favour of another solicitor, and the case literally reached the door of the court room before they finally agreed. That approach wasted a lot of time and P's money, and was an unnecessary battle to fight.

Another more recent case involved similar circumstances, and the deputy refused to acknowledge there were any issues to address, despite significant tension with the family. This case was far from straightforward, and there were many complicating factors, but the deputy initially refused to step down. It took well over a year before they eventually agreed to the family's request. It was an extremely difficult time for the family.

Ignoring the question of who was right or wrong over what had caused the breakdown, I struggled to understand how the deputy believed he would be able to continue acting for P in the long term. He clearly was going to face obstacles at every turn with the family, making consultation with them very awkward if not impossible.

Special circumstances

Certainly my view is that if I was in the position where my relationship with P or their immediate family had irretrievably broken down, and they had identified another professional to take over, I would not wish to contest this unless there were very special circumstances.

It is of course not necessarily going to be in P's best interests to step down in every case; facts and circumstances are always unique. However, the deputy should always carefully consider whether they can properly discharge their duties if they are to remain in place. Indeed, unreasonably refusing to step down could well lead to the deputy being on the wrong end of a costs order.

Brian Bacon is a partner at Thomson Snell and Passmore