Solicitor Joseph Brophy, specialising in Court of Protection disputes, looks at the impact that disagreements between P’s family and a court appointed deputy can have on P.
Perhaps unsurprisingly, disputes between somebody appointed to manage one’s property and affairs and that person’s family are not uncommon.
For various reasons, a professional representative might be appointed to manage a protected party’s(“P”’s)affairs. Unsurprisingly, P’s family are not always supportive of this, not least because an appointed professional will involve costs. You can read another of my recent blogs concerning costs in Court of Protection proceedings here.
Take for example, a 14-year who has recently suffered a brain injury because of an accident. She subsequently receives significant compensation, much of it being required to pay for life-long care. A complex care package might be required together with various home adaptations to meet that person’s needs. The court of protection or the office of the public guardian may recommend, given the value of that person’s compensation, that an independent professional deputy be appointed to manage their property and affairs.
Such disputes can often lead to lengthy court proceedings at great expense to the P’s estate.
In the recent case of Kambli (as property and affairs deputy for MBR) v The Public Guardian [2021] EWCOP 53, the senior judge of the court of protection, her Honour Judge Hilder, considered an application(initially refused by the court of protection)for a panel deputy to be discharged as P’s deputy for property and affairs on the basis of a breakdown in relations between the appointed professional deputy and the protected party’s family. The family, in turn had proposed P’s parents to replace the deputy or, in the alternative, two of P’s cousins.
This was not a simple case of a minor disagreement between the family and that deputy. In fact, several professional deputies had previously been discharged due to a relationship breakdown with P’s family, and similar issues earlier deputies experienced appeared to be repeating themselves in this application. Indeed, on every previous occasion, the new deputy’s appointment was the outcome of contested court of protection proceedings involving the previous appointed-deputy, P’s family and the family’s proposed deputy (who, on each occasion, failed to comply with court directions).
Further, relations between the deputy and P’s family were so dire that the deputy had argued that he would need to consider bringing legal action against P’s father to protect his own firm, which in turn would cause a conflict of interests between his role as P’s deputy and owner of the firm itself.
Interestingly, despite the parties’(including the OPG’s) unanimous agreement that a replacement deputy be appointed, the court initially refused the application. This makes sense, as there cannot be a procession of deputies in circumstances where P’s family make life difficult for the appointed deputy. Further, the court of protection chooses panel deputies when no one else is willing or able to act, as was the case here (the family’s proposed deputies on each occasion were less suited to the role than a panel deputy).
Practically, of course, it is not ideal for a new deputy to start from scratch from a costs perspective. Equally, there will always be associated increased deputyship costs in the event of a disagreement with P’s family, let alone when such a disagreement results in court proceedings.
HHJ Hilder was required to reach a decision which would ultimately be in P’s best interests.
Consideration was also given to steps that may betaken to alleviate tensions between the deputy and P’s family. A key point to note with any deputyship(and was the case here)is the involvement of the OPG. One appointed to manage P’s affairs should always revert to the OPG for advice on a particularly challenging aspect of that person’s affairs, particularly, for example, the steps that may be taken to restrain any inappropriate behaviour on the part of P’s family.
It was argued during proceedings that P’s father was “intent on breaking down any relationship he has with a Deputy by “Deputy shopping” so no doubt the OPG’s guidance could be of assistance and indeed during proceedings, the OPG were asked to provide a statement in respect of what support could be provided, albeit it may well have been the case here that any proposed steps to ease the situation would not have allayed the deputy’s concerns.
HHJ Hilder also noted that an OPG panel deputy has “a recognition of expertise and experience which carried advantages in terms of referrals of cases but also responsibilities in that panel members are expected to accept such referrals (except in limited circumstances) irrespective of the nature of the case”.
The obvious risk in allowing the application being to send the wrong message to P’s family(and indeed the wider community of those appointed to manage one’s affairs), who might inevitably shop for another deputy upon disagreement with a newly appointed one. However, the facts in this case were exceptional with such an intense breakdown in relationship between the deputy and the family meaning no realistic working relationship could be established, leaving the court with little alternative but to discharge the panel deputy.
The application for the parents to replace the panel deputy was quite rightly dismissed due to the extensive difficulties caused by P’s father during the previous deputyships. However, owing to the professional backgrounds of the proposed cousins, the court concluded their appointment provided the least inconvenience and risk to P. However, strict conditions were imposed to their appointment including a limited one-year initial appointment, an unusually high security bond, some of the usual deputy powers withdrawn together with a requirement that any dispute between the new deputies and P’s father be put before the court. The cousins’ deputyship is therefore subject to an extraordinary but highly appropriate degree of regular scrutiny.
So, what can be learned from Kambli and who is the ultimate loser?
Given the outcome, it can be argued(eventually at least) that both the deputy and the family achieved their desired outcome to a certain degree. It can only be speculated retrospectively whether P benefits more from this decision than he would have had the application ultimately been refused, but this is beside the point. The court cannot predict the future and the process to discharge a deputy cannot be abused.
One may have had sympathy for the deputy on the refusal of the application in the first instance, but on the other hand, a costly cycle of fresh appointments is undesirable. It is almost always the case that the first-year deputyship costs are the highest. A new deputy will need to get to speed with P’s finances, ensure they are brought under their control, introduce themselves to P, P’s family and any third-party professional associated with P. Why incur such costs only for the cycle to repeat itself: the newly appointed deputy to later fall out with P’s family and inevitably make her own application to have herself discharged?
The case sends a clear message that, while the conduct and opinion of P’s family will be afforded due consideration, the interests of P will always, rightly, prevail. Families warring over their relative’s affairs should always think of the costs their conduct has on P.
P is almost always the loser in disputed contested court of protection proceedings, even if the usual rule in respect of costs is departed from. The ‘in-limbo’ situation for P’s property and affairs while disputes are resolved comes at P’s detriment, even if a costs order is later made against a party to proceedings, in P’s favour.