A Battle Between Two Aspiring Deputies

When an individual has lost capacity and their affairs need to be looked after, an Attorney (appointed by deed) will usually take the mantle. Where nobody has been appointed to act as that person’s Attorney, a deputyship order must be sought from the Court of Protection, and if there are no close relatives or friends who are willing and able to apply, the Local Authority will often step in and seek to appoint a professional Deputy.

This is quite often a last resort in circumstances where nobody else can be found but in KKL Executor and Trustee Company Ltd v Harrison (2020) EWCOP 25, two aspiring deputies battled for an order.

KKL Executor and Trustee Company Ltd v Harrison

Case background

The protected party had been diagnosed with dementia and had no immediate family able to manage her affairs. She had a number of years previously made a Will with the applicant firm (KKL) and instructed KKL a few years later when she looked to change her Will. She had been in communication with them about producing a Power of Attorney but this came at a time when her capacity was dwindling.

The respondent (Ms Harrison) – a respected solicitor and a Court-approved panel deputy – was preferred by the Local Authority. KKL did not agree that it was necessary to appoint Ms Harrison as deputy. KKL argued before the Court of Protection that they should be appointed because they believed the protected party wanted them to act (citing her continued instruction of them as an indicator of trust and confidence). Much was made of their close relationship with the protected party and the fact that they had helped her with a number of issues over the years. The Judge accepted this and described the relationship between KKL and P as “pastoral”. KKL stated that this made them preferable to a complete stranger. They also argued that Ms Harrison’s firm would charge significant fees for their services, which would not be in the protected party’s interests.

However, Ms Harrison argued that KKL were not suitable to act. Logistically, they were based far away from the protected party who was in a care home close to where Ms Harrison’s firm was based and KKL did not (in Ms Harrison’s submission) have a great deal of experience in acting as a Deputy. Crucially however, several of KKL’s directors were the Trustees of a charity named JNF Charitable Trust (JNF). JNF is a Jewish charity to which the protected party had made a gift in her Will and this raised a possible conflict of interests.

Conflicts of interests are not a barrier to an individual or organisation being appointed as Deputy – it is common, for example, for relatives to act for one another despite being beneficiaries of the other’s Will and much trust is placed in the Office of the Public Guardian to supervise deputies’ activities. However, in this particular case, there was another complication for KKL – by the time the protected party’s second Will was created, a stricter fundraising code was in force and they were accused of not having adhered to it by accepting instructions to draft the protected party’s Will, which left a gift to JNF – the charity with whom KKL was closely connected.

The Court was not satisfied that KKL had been exonerated of potential breaches of the Fundraisers’ Code and this was something the appointed deputy would have to investigate. Therefore, despite the many factors in KKL’s favour, the Court opted in the end to appoint Ms Harrison.