A recent court case has confirmed that the Court of Protection will not tolerate persistent breaches of a deputy’s accounting obligations. If you require guidance on removing a deputy then call our free legal helpline.
A deputy who was appointed to act on behalf of his 65 year old partner, CJ, having lived with her for 25 years has been removed by the Court of Protection.
The Office of the Public Guardian (OPG) made an application to the Court of Protection because they were concerned that the deputy was not complying with his duties. The OPG complained that he:
- had not filed any accounts on behalf since being appointed as a deputy;
- had not paid the yearly supervision fee of £88.00;
- had refused entry to an OPG worker, who attempted to visit CJ; and
- had invoiced the OPG for the time he spent corresponding with them.
The deputy was initially ordered to produce and submit the yearly accounts and to generally cooperate with the OPG staff. However, he refused to do so and this resulted in the court removing him as a deputy.
He asked the Court of Protection to reconsider and produced accounts of his business showing that he had not used his partner’s funds inappropriately. He also apologised for sending the invoice to the OPG, but felt that the OPG’s involvement was disproportionate.
The court was ‘absolutely certain’ that there had been no dishonest misuse of CJ’s funds. Nonetheless, it refused to reinstate the deputyship, stating that:
‘To turn a blind eye to [the deputy’s] wilful refusal to comply with his duties would erode and undermine the safeguarding work carried out by the OPG’s supervision and compliance teams, which cannot possibly be in the public interest”
The court added that to reinstate the deputy would essentially circumvent the court’s duty under international human rights law to ensure that vulnerable people under the court’s protection were shielded from abuse.
The court appointed a panel deputy to take his place and stated that an enquiry should be conducted, to ensure that CJ’s affairs were managed in the least restrictive way possible.
Breach of Court of Protection accounting requirements
So why did the Court take such a dim view of the deputy’s conduct? Clearly he had CJ’s best interests at heart and was not found to have financially abused his position as her deputy.
The Mental Capacity Act 2005, gives the Court authority to:
a) Require a deputy to take out a security bond as the court thinks fit; and
b) Require a deputy to submit reports as and when the court sees fit.
The deputy was clearly in breach of the second element of the accounting requirements. On the surface the breach seems to be a minor administrative error. However the breach goes much deeper than this. By refusing to provide the OPG with yearly accounts, he was preventing the OPG from correctly supervising CJ’s financial affairs. Removing a deputy in these circumstances is therefore understandable.
There have been numerous recent cases highlighting a deputy’s fraudulent use of a donor’s funds. The OPG’s involvement in a vulnerable person’s financial affairs is an essential safeguard against the financial abuse of a person who lacks capacity.
The potential impact of the deputy’s breach could have been that CJ’s money was fraudulently used. Without yearly accounts, the OPG is unable to protect the financial interests of the vulnerable people they protect. Although CJ did not come to any harm in this instance, the deputy’s refusal to work alongside the OPG was an indication that he was not a suitable deputy. Had he complied with the OPG’s request in the first instance it is unlikely that he would have been removed as CJ’s deputy.
Unfortunately it is CJ who has lost out overall as a result of the court removing her deputy. However, the court did direct that investigations should be made into how her best interests could be served in the least restrictive way possible. It could be that another family member can be appointed to monitor her finances.
If you require guidance on removing a deputy please contact us on 0808 139 1606 for a free informal chat about how we can help you and the legal costs that are likely to be involved.
