If your friend or relative lacks capacity to make a particular decision at a particular time, then any act done or decision made by someone else on their behalf, must be done or made in their best interests. The Court of Protection may make a decision on behalf of your friend or relative, or may appoint a deputy to make a decision on their behalf.
The Court of Protection has a broad discretion as to whom it appoints as deputy. Preference is usually given to friends or relatives, because they are familiar with the person’s affairs, and their wishes, and are in a better position to encourage that person to participate in the decision making process.
Is there an order of preference of persons who might be considered suitable for appointment as deputy?
The Court observes an unofficial order of preference of persons who may be considered suitable for appointment. This includes the following:-
- A spouse or partner;
- Any other relative who is interested in the person’s welfare;
- A friend;
- A professional adviser, such as the family solicitor or accountant;
- An authorised officer of property and affairs deputyships in a localauthority;
- A panel deputy.
The above order of preference is not set in stone and there could be various reasons why the above order should not be followed in a particular case.
When will the appointment of a professional deputy be appropriate?
There are many cases in which a relative or friend may be considered unsuitable as a deputy. This includes the following:-
- There has been physical or financial abuse;
- There is a conflict of interest;
- The proposed deputy has an unsatisfactory track record in managing his or her own financial affairs;
- There is ongoing friction between various family members that is likely to interfere with the proper administration of the person’s affairs;
- Where a person has received a substantial amount of damages for apersonal injury and the amount of compensation has been expresslycalculated on the basis that a professional deputy will act.