Deprivation of Liberty Redefined – What This Means For Deputies Managing Property Sales

In June, the UK Supreme Court changed the definition of the Deprivation of Liberty. So, what happened and what does this mean for financial and property affairs deputies when it comes to the sale of properties?

Why the UK Supreme Court changed the definition of the Deprivation of Liberty

The previous definition of the Deprivation of Liberty came from the case of Cheshire West. In this case it was determined that someone was deprived of their liberty if three things were true:

1. The person did not have capacity to consent to their care and living arrangements
2. The person was under continuous supervision or control
3. The person was not free to leave

However, in June this year, the UK Supreme Court said that this previous definition is incorrect. The Court concluded that the previous definition wrongly assumed that if someone lacks capacity, they cannot give valid consent to their arrangements.

The Supreme Court has now established that a person can give valid consent if three things are present:

1. The person is aware of their environment
2. The person has a basic level of understanding of their environment and arrangements
3. The person can express a view that they are happy with their arrangements

The judgement also states that multiple factors need to be considered when looking at a person’s situation. The type of restrictions on the person, the duration and the effects of the restrictions and the way in which the restrictions are implemented on the person need to be considered. One single factor can no longer determine a person’s situation and their restrictions. A multifactorial approach now needs to be taken when considering a person’s situation.

What are the likely impacts of this new definition?

This new definition will mean that less people will be considered as being deprived of their liberty. This means that fewer people will be given the protection of an independent professional who will assess a person’s situation and from this may flag a person’s deprivation of liberty where it may not be lawful and/or in the person’s best interests, to be considered by the Court of Protection.

This definition may also cause more cases to be decided at the Court of Protection, due to a potentially greater need for professional judgement in assessments determining whether someone is deprived of liberty.

What this ultimately means for property and financial affairs deputies selling a protected person’s property

There will be an increase in the number of individuals who will be considered not to be deprived of their liberty and therefore potentially more cases ending up in front of the Court of Protection, resulting in an increase of disputes. This will have a knock-on effect on the sale of properties by financial and property deputies, as house sales could get delayed whilst any disputes about the deprivation of liberty assessment are resolved.

The deputy’s responsibility to show the Court of Protection why the sale of the property is in the person’s best interests will still remain. However, this responsibility will become slightly more complicated.

This is because, at present the Court of Protection request a copy of the Deprivation of Liberty Safeguards as evidence that a person is not going to return home and therefore the property can be sold. Now with fewer Deprivation of Liberty Safeguards being issued, what evidence the Court will accept will need to be identified and collated, to enable the sale of properties to release funds for the protected person’s needs.

In summary, the Courts have seemingly given way to a more flexible approach to establishing whether a person is deprived of their liberty, however it is certain that this new definition will have direct implications for protected people and their deputies, as well as indirect consequences in the sale of properties by financial and property deputies.

If you have any enquiries relating to financial and property deputyships, please do not hesitate to contact us on 0330 822 3451 or rquest a callback, and our team of experienced Court of Protection & Deputyship solicitors will be happy to help.