Court of Protection Deputy Able To Continue Acting Despite The Protected Party Residing In India

Deputies appointed by the Court of Protection have the authority to make decisions on behalf of a Protected Party, provided those decisions fall within the authority conferred by the Court. These decisions will be in relation to either a person’s property and financial affairs or health and welfare. The power conferred by the Court of Protection will typically allow deputies to make decisions concerning a person’s everyday life, with the more substantial decisions often requiring further direction from the Court of Protection. It is also common for the authority granted to a professional deputy to be greater and more flexible when compared to the authority granted to a lay deputy.

A property and financial affairs deputy will have jurisdiction so far as the Protected Party’s assets held in England and Wales, and providing the Protected Party continues to reside in England and Wales. Where the Protected Party leaves England and Wales and begins to reside elsewhere on a permanent basis, the jurisdiction of the deputy will be determined on the new place of residence and the corresponding laws. The effect of a deputyship is therefore different around the world, and in some countries, it is possible for the deputyship to remain recognised. The determination of a deputy’s jurisdiction where the Protected Party moved to India was recently seen in this case.

Case background

In this case, the deputy acted as deputy for the Protected Party, a 14-year-old who had suffered severe brain damage and, as a result, received a substantial settlement leading to the deputy’s appointment. During the PI claim, the Protected Party and her family relocated to India and now reside there on a permanent basis, albeit with frequent trips back to England being made for health reasons. Given the Protected Party’s residence in India and her needs, the deputy sought the Court of Protection’s permission to purchase 2 properties in India and to make lifetime gifts to her parents and siblings. Before making a decision as to whether or not the property purchase and gifts were in the Protected Party’s best interests, the Court of Protection first had to determine whether there was sufficient jurisdiction to make that decision.

In considering the Court of Protection’s jurisdiction, the Court noted that, whilst India has its own guardianship equivalent, it was likely India would recognise that England has jurisdiction over the assets located within its territory, and this may only change in the event the habitual Court were to make a ruling. It was also noted that the Protected Party’s parents preferred the deputy to continue acting as deputy as opposed to the starting position under the Indian guardianship, requiring the Protected Party’s father to instead act. The Court of Protection therefore concluded the deputy’s jurisdiction, pursuant to the relevant laws, extended to making financial decisions whilst the Protected Party resided in India. Such a finding was made with the caveat that the Deputy’s jurisdiction will continue until contrary steps have been taken in the Protected Party’s new place of residence.

This case confirms that a Deputy’s authority may extend beyond England and Wales, subject to the relevant laws applying and the new habitual residence not preventing the same. As seen in this case, such a position allowed continuity and consistency with regard to a Deputy’s management of the Protected Party’s Property and Financial affairs. It should be noted, however, that unlike typical Court of Protection decisions, the question of jurisdiction is a legal point and therefore the decision will not be based on the Protected Party’s best interests but instead the applicable law of the conflicting jurisdiction.