In this third and last of the series of articles concerning the role of the Court of Protection appointed Deputy, I will look at the basis on which the Court of Protection may replace or remove a Deputy. These powers are contained in section 16(8) of the Mental Capacity Act 2005.
By virtue of section 16(8) the Court may suspend or discharge the appointment of a deputy if it is satisfied that the deputy:
• has behaved, or is behaving, in a way that contravenes the authority conferred on him by the Court or is not in the protected party’s best interests; or
• proposes to behave in a way that contravenes the authority conferred on him by the Court or is not in P’s best interests.
As such, if a deputy acts outside the scope of his or her powers and/or is misappropriating and mismanaging property of the person who lacks capacity, it is possible to seek their replacement. However, this is not a decision the Court of Protection would make lightly. The Court will consider whether it is in the best interests of the person who lacks capacity to have the deputy removed and replaced.
By way of example, in the case of Re CJ , CJ who lacked capacity had been awarded compensation in the sum of £300,000. She lived with her partner, MP, and they had been together for 25 years. In 2010, a Judge appointed MP to be CJ’s Deputy for property and affairs.
By 2014, the Deputy was overdue in providing annual financial reports, had failed to pay Office of the Public Guardian supervision fees, refused to let the Court of Protection General Visitor visit CJ and sent a bill of over £1,000 to the Office of the Public Guardian for costs he claimed he had incurred and which he expected the Office of the Public Guardian to pay.
The Office of the Public Guardian applied to the Court of Protection for an order that the Deputy provides full accounts for all his dealings and that, if he fails to provide satisfactory accounts, he should be removed as deputy. The Deputy failed to comply with this order.
As a result, the Court of Protection ordered the Deputy to submit a final account and an order was also made to remove MP as Deputy and for a panel deputy to be appointed in his place.
The Judge held that although there was no dishonest misappropriation of CJ’s funds, the Deputy had failed to discharge his duties. The Judge further held that when MP applied to be appointed as Deputy, he completed a deputy’s declaration (COP4), in which he gave various undertakings, such as:
“I will comply with any directions of the court or reasonable requests made by the Public Guardian, including requests for reports to be submitted.”
“I will co-operate with any representative of the court or the Public Guardian who might wish to meet me or the person to whom the application relates to check that the deputyship arrangements are working.”
Despite having given those undertakings, MP had failed to discharge his duties as Deputy and to keep all financial records and submit a report to the Office of the Public Guardian as and when required. To turn a blind eye to MP’s refusal to comply with his duties would undermine the safeguarding work carried out by the Office of the Public Guardian. The Judge was satisfied that MP had behaved in a way that contravened the authority given to him and confirmed that MP ought to be removed as CJ’s Deputy.