There are some circumstances where your loved one will have a court appointed panel deputy or professional attorney looking after their finances. In this situation, what are the duties of a court appointed deputy or attorney to the family?
Your loved one, formally called the ‘donor’, may have appointed a professional attorney under the Lasting Power of Attorney for Finance and Property. This professional attorney is likely to be either a solicitor or an accountant. If your loved one didn’t appoint an attorney at all and they have lost mental capacity, then a ‘deputy’ will have to be appointed by the Court of Protection.
Court appointed or panel deputy
In situations where an individual is unable to make decisions for themselves due to a loss of mental incapacity, the legal system often intervenes to ensure their affairs are managed properly. This intervention typically involves the appointment of a deputy or a panel deputy by the Court of Protection. The deputy’s primary responsibility is to act in the best interests of the incapacitated person. The deputy’s duties are primarily focused on the finances of the individual but, what are the duties of the court-appointed deputy to you?
A deputy’s role is defined in the Mental Capacity Act and the Mental Capacity Code of Practice. The deputy is only entrusted with dealing with the finances and property of the donor. Decisions regarding the health and welfare of the donor usually sit with the family.
Open and transparent communications
One of the key duties a court-appointed deputy holds towards the family is maintaining open and transparent communication. The deputy must keep the family informed about important decisions regarding the individual’s welfare and finances. This includes consulting with family members to gather insights into the wishes and preferences of the incapacitated person when making decisions on their behalf. While the deputy ultimately bears the responsibility for making decisions, input from the family can provide valuable context and ensure that the individual’s best interests are properly considered.
Impartiality and without bias
Furthermore, a court-appointed deputy is obligated to act impartially and without bias in carrying out their duties. This means that the deputy must prioritize the well-being of the incapacitated person above any personal interests or conflicts that may arise within the family. It is essential for the deputy to maintain professionalism and integrity in their decision-making process. Thus ensuring that each decision is made in accordance with the law and in the best interests of the individual.
Disagreements with the deputy
In cases where family members disagree with the decisions made by the deputy, it is crucial to address concerns through appropriate legal channels. Family members have the right to challenge decisions made by the deputy if they believe that they are not in the best interests of the incapacitated person. However, such disagreements should be resolved through respectful dialogue and, if necessary, mediation or legal proceedings.
A court-appointed deputy has a duty to promote the welfare and dignity of the incapacitated person at all times. This involves ensuring that the individual’s living arrangements, medical care, and day-to-day needs are adequately met. The deputy should advocate for the individual’s rights and preferences, taking into account their values, beliefs, and cultural background.
A delicate balance
In conclusion, the duty of a court-appointed deputy to the family is multifaceted and requires a delicate balance between respecting the individual’s autonomy and safeguarding their well-being. By maintaining open communication, acting impartially, and promoting the welfare and dignity of the incapacitated person, the deputy can fulfil their responsibilities effectively while also fostering trust and cooperation within the family unit. Ultimately, the goal of the deputy is to ensure that the best interests of the incapacitated person are upheld, whilst also respecting the rights and concerns of their family members.
Professional Attorney
The Mental Capacity Act Code of Practice paragraph 7.59 states that attorneys who are being paid for their services or hold relevant professional qualifications must demonstrate a higher degree of care or skill than those acting in an unpaid or informal capacity.
The Office of the Public Guardian has a Practice Note: Agreeing to act as a Professional Attorney. This Practice Note doesn’t address the issue of how the professional attorney should communicate with the family but, it will very much be along the lines of the court-appointed deputy.
Complaining about the deputy or professional attorney
If you are a family member who is unhappy about a court appointed deputy or professional attorney, what should you do?
These are the recommended steps:
- Try and establish contact with the relevant attorney or deputy.
- Do this in writing (or by email) so you have a record.
- Ask for a meeting or phone call or some form of correspondence.
- If you do not get a reply from the individual, try contacting the firm that they work in.
- If you do not get a reply at all after several attempts, you should state that you will be contacting the Office of the Public Guardian (OPG) next.
- Contact the OPG to Report a Concern.
- You can use the Form OPG130 to report a concern, but be aware that the OPG can only investigate if the donor has lost capacity.
- If the donor has not lost mental capacity, you may want to approach the Solicitors Regulation Authority if you believe the attorney is acting unprofessionally as a solicitor.
