Written by Carys Lewis | Trainee Solicitor – Court of Protection
At the beginning of July it was reported that the Judge in Britney Spears’ legal battle to regain control of her affairs denied her request to remove her father, Jamie Spears, as conservator. It has since been reported that Mr Spears has agreed to step down from the conservatorship “when the time is right” and that he is seeking $2m in payments before leaving his role.
The equivalent of a conservatorship in England and Wales is a deputyship. Following the news reports of Britney’s conservatorship, we noticed a number of new enquiries from individuals wishing to discuss the safeguards in place for a deputyship, once the deputyship is in place and during the application process.
What is a deputyship and what authority does a deputy have?
The Court of Protection can make an order appointing a property and affairs deputy if someone is considered to lack mental capacity to manage their own property and affairs. This person is referred to as ‘P’.
The deputyship order will provide the deputy with authority to manage someone’s property and affairs. It will usually restrict the purchase or sale of freehold or leasehold property without a further order of the court. The order will often provide authority to make a gift to a charity or persons connected to P on customary occasions, provided that the value of the gift is reasonable for the occasion and value of P’s estate. For gifts which are outside the authority provided to the deputy in the order, an application should be made to the Court of Protection for authority to make the gift.
Safeguards during the application process
The court will require evidence of capacity before a deputyship order can be made. A person must be assumed to have capacity unless it is established that they do not have capacity. Capacity is decision-specific, time specific and can fluctuate. The court will require a capacity assessment to be submitted with the application to appoint a deputy, addressing whether or not a person has capacity to manage their property and affairs themselves and whether or not this is likely to change.
A capacity assessment can be completed by one of the following professionals: medical practitioner, for example the GP of the person to whom the application relates, psychiatrist, approved mental health professional, social worker, psychologist, nurse or occupational therapist.
Once the deputyship application forms have been completed, the application is filed at court and is subsequently issued. This means it is live in the court system and the application will be provided with a court number. At this point the notification requirements must be carried out. It is a requirement that P is personally notified that an application has been made. It is also a requirement that at least three people be identified and formally notified that the application is being made. Those notified should be family members, friends or other appropriate persons connected to P. The person the application is about and those that are notified must be provided with a COP5 form. The COP5 ‘acknowledgement of service’ form can be completed if someone wishes to take part in proceedings, respond to the application or request that the court make a different order.
If the Court of Protection are satisfied that P lacks capacity and a deputyship should be granted, the court will make the order. The court asks that the deputy pay a security bond before they send the order to the deputy. This is a type of insurance that protects the assets of P. The court will set a security level which is the level of insurance required. The court can change the level of security during the deputyship. Once the bond has been paid it can be enforced if the deputy does not carry out their duties properly – the court can call in all or part of the bond up to the value of the security. On receipt of confirmation that the bond has been paid the court will send the deputy the deputyship order. The deputy must maintain the security level throughout the deputyship.
The court can grant a time-limited deputyship which lasts until a certain date. If there is an indication in the capacity assessment that the person will regain capacity at a later date, perhaps after a period of rehabilitation, the order may provide the deputy with authority to act until a certain date, after which a new application will need to be made.
Section 1 of the Mental Capacity Act 2005 sets out five statutory principles relating to capacity which apply to those making decisions at the Court of Protection and to deputies. The essence of the principles is that a person should be supported to make a decision themselves and before the decision is made consideration should be given as to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedoms.
Decisions should be made in P’s best interests and deputies should work with P to understand their wishes, past and present, and ensure that P is supported to make decisions themselves where possible. If there is doubt over P’s capacity to make a specific decision, the deputy should consider whether a capacity assessment should be carried out by a medical professional addressing P’s capacity to make the specific decision in question.
Office of the Public Guardian (OPG): supervising deputies
The Office of the Public Guardian is authorised to supervise deputies. A deputy is required to submit an annual report to the OPG each year, showing how P’s property and finances have been managed and accounting for all outgoings and major decisions. The OPG will also support deputies in their decision making as required.
The OPG produce guidance to support deputies to carry out their role effectively and to understand their duties.
Deputies may have a supervision visit by a Court of Protection visitor. The visit will be an opportunity, amongst other things, to check that the deputy understands their duties and is carrying them out correctly.
Ending a deputyship
If a person regains capacity to manage their property and affairs themselves they can provide evidence to the court, in the form of a doctor’s letter, and ask that the deputyship is discharged. They will need to complete a COP9 form and send this to the court along with any supporting evidence. The deputyship will be in place until the order discharging the deputyship has been made.
Therefore, in England and Wales, if P regains capacity and can provide evidence to support this, the court, if satisfied that the evidence is sufficient, should end the deputyship.
What next for Britney?
It was reported a few days ago that Britney’s father has unexpectedly filed to end the 13-year conservatorship. This follows Britney’s appearance in court a couple of months back, where she requested that her father be removed.
The mounting media attention and the “free Britney” movement continues to grow in support of Britney being released from the conservatorship.