When a loved one has lost capacity, but has not executed a Lasting Power of Attorney, nobody has the power to manage that person’s finances or make decisions concerning their care, health and welfare. The usual solution to such a problem is for a relative to apply to the Court of Protection for a Deputyship Order. It is possible for several family members to be appointed as Deputies.
The difficulty arises when there is a dispute between relatives. If one of your relatives has applied for a Deputyship Order and you do not think that they are a suitable candidate, you have an opportunity to object to their appointment and to file evidence in response. The Court will usually list the case for a contested hearing and will listen to both parties’ arguments.
Disputing deputyship applications – what the Court considers
The key question is how and why a Deputyship application can be resisted. Generally speaking, the Court will be reluctant to appoint someone who lacks the capability or availability, whose motives might be questionable or someone with a sketchy past. Examples of the common reasons to refuse a Deputyship application include:
1. The applicant himself/herself is not in good health (e.g. cannot leave home easily to go to the bank, or is residing in a care home);
2. The applicant contends that the person without capacity owes them money;
3. The applicant has past criminal convictions for offences involving dishonesty;
4. The applicant lives abroad; or
5. The applicant themselves has a poor record of dealing with their own finances (e.g. past bankruptcy).
The Court will weigh up all the factors and will often make an appointment (or appointments) based on the available relatives and their suitability. If nobody is available or willing, a professional firm of Deputies can be appointed to manage matters.
Such disputes are rarely simple and in some families, where there is significant hostility, allegations can arise from all sides. In such cases, the Judge will have to engage in a fact-finding exercise to determine which allegations are true.
An example of the Court facing objections from several fronts was the case of Re PAW. In this case, the protected party had not appointed an Attorney and although her husband was the obvious choice for Deputy, this was resisted by his son on the basis that he lacked capacity and would not be able to deal capably with financial matters. This was accepted by the Judge but the son’s own application to become a Deputy was refused due to a conflict of interests – the son alleged that his mother owed him money.
The Court ended up appointing the protected party’s cousins, who were close enough to the family to be able to act but appeared to be more impartial. The key factors, however, were the fact that the cousins lived locally, they were trusted by the family, they were named as Executors in the protected party’s Will and were already Attorneys for her husband.
Conduct does matter in disputed Court of Protection applications. In Re PAW, the applicant son was placed at an immediate disadvantage as he failed to file evidence on time and was not allowed to rely on it at the hearing. The Judge partly based his decision on the fact that the applicant son lacked credibility, which demonstrates that performance in the witness box can make a significant difference.