Who should act as deputy?
If a person lack sufficient mental capacity to manage their own finances, the Court of Protection will appoint a finance deputy to look after their financial affairs for them.
The court generally prefers to appoint family members as deputies. However sometimes the court will prefer to appoint a professional deputy. The reasons for not appointing a family member include:
(i) Financial abuse
(ii) Conflict of interest (where deputy shares household expenses with the incapacitated person (IP) or expects to be paid for providing care from the IP’s money or requests maintenance from the IP’s money)
(iii) The family member has an unsatisfactory record in managing their own affairs (eg count court judgements, criminal record, alcohol / drug problems)
(iv) Friction between family members.
The court has an absolute discretion with regard to the choice of deputy but the order of preference is as follows:
- Spouse or partner, or parent if the IP is a minor
- Any other relative who takes an interest in IP’s affairs
- Friend of the IP
- Professional advisor
- Local authority / panel deputy
The court must also take into account a number of other factors as follows:
- the size and complexity of the IP’s estate,
- the geographical location of deputy
- the age and health of deputy
- any ethnic and religious considerations
- the wishes of the IP’s family
- the ability of the IP to interact with deputy
- the remuneration and costs of the deputy
- any special qualities of the deputy or special circumstances
The defining principle for the court is to choose the deputy who most represents the IP’s best interests.