Conflicts Of Interest In The Court Of Protection

Although many of the proceedings that take place in the Court of Protection are non-contentious, to begin with, things can go down quickly. Disputes over the welfare or the finances of a protected party can arise when there is a conflict of interests between the protected party and his/her attorney or deputy. It is of pressing concern when there is a conflict of interests between the deputy and protected party as the deputy may not be able to act in the protected party’s best interests.

The Court of Protection’s processes is set up to draw out any potential conflicts between a deputy and a protected party from the outset. The applicant must produce the COP4 form which requires the disclosure of any potential conflicts of interest.

Examples of conflicts of interest in the Court of Protection

Conflicts of interest could arise in a number of circumstances, including:

• Where the proposed deputy jointly owns a property, bank account, and/or an investment with a protected party (commonly where partners of a protected party apply for deputyship but also the case occasionally with adult children);
• Where there is some form of financial dependency between a protected party and the deputy;
• When a protected party has previously been exploited by either the applicant or another family member, particularly when civil action may be necessary for the recovery of any misappropriated sums; or
• Where the proposed deputy is a carer for the protected party but not a relative.

This is not an exhaustive list of possible conflicts and whether a conflict does in fact exist will be dependent on the facts of the case. The Court of Protection further seeks to identify conflicts of interest early on by requiring the applicant to notify a protected party’s immediate family of any application he/she has made and the purpose of this is to enable the relatives to raise any concerns with the application.

What happens when there is a conflict of Interests in the Court of Protection?

There are a number of ways the Court of Protection will deal with conflicts of interest when they arise. This will largely be dependent on the facts of the case, as each case will have its own unique issues.

If the potential conflict is minor in nature and/or spurious, the Court may choose not to interfere and grant the application made. It would, however, be expected that any issue later arising in respect of that conflict was well documented, and if complex, further directions should be sought from the Court by the deputy or attorney in question.

The Court of Protection may also provide directions in respect of the issue, providing the conflict can be managed and provided it is not so great to interfere with the deputyship. This allows the proposed deputy to proceed with his/her role and effectively removes any conflict. As an example, where the deputy and protected party jointly own property the Court of Protection may or may not sever any joint tenancy and, if necessary, order the sale of the property depending on the circumstances of the case.

If, on the other hand, the conflict is seen so great that interferes with the attorney/deputy’s ability to act in the best interests of a protected party, the Court may refuse the application, or make an order appointing someone else in place of the conflicted attorney/deputy. Usually, a professional deputy from the Court’s panel will be invited to take on the role. However, the Court will also be open to consideration of other professional deputies suggested by the family.