Ensuring protection: when a deputy needs to be removed

By Eloise Smith, Solicitor at Mayo Wynne Baxter.

For individuals and businesses, managing the affairs of someone who lacks mental capacity is a critical responsibility. When the Court of Protection appoints a deputy to manage the property, financial affairs, or personal welfare of such an individual (referred to as ‘P’), this deputy assumes a vital legal duty: to act solely in P’s best interests. However, what happens when concerns arise about a deputy’s actions or their ability to fulfil this role?

This article explores the essential topic of deputy removal, outlining the legal grounds for such action, the processes involved and, importantly, how concerned friends, family members, or other interested parties can raise their concerns. Understanding these mechanisms is crucial for safeguarding vulnerable individuals.

Grounds for removal: when intervention is necessary

The Court of Protection has the ultimate authority to remove a deputy. This is a serious decision, made when compelling evidence suggests the deputy is failing in their duties or acting detrimentally to P’s interests. Here are the primary grounds:

1. Failure to act in P’s best interests: A deputy’s core duty is to make decisions aligning with P’s best interests, as mandated by the Mental Capacity Act 2005 (MCA 2005). If a deputy makes choices that demonstrably harm P’s welfare, financial stability, or overall well-being, the court will consider removal.

2. Financial mismanagement or abuse: This is one of the most common and serious reasons for removal. Misusing or mismanaging P’s finances can have devastating consequences. This includes:

        • Using P’s money for the deputy’s personal gain.

        • Failing to provide proper records or explanations for spending P’s money.

        • Making inappropriate investments or failing to protect P’s assets.

3. Failure to comply with court orders or directions: Deputies must comply with specific orders or directions issued by the Court of Protection. Non-compliance, whether deliberate or negligent, is a serious breach of duty and can lead to removal.

4. Inability or unwillingness to fulfil duties: A deputy must be capable and willing to carry out their responsibilities. If a deputy becomes unable to fulfil their duties (e.g., due to their own ill health, loss of capacity, or other significant personal circumstances), or becomes unresponsive, uncommunicative, or unwilling to continue, removal may be necessary.

5. Conflict of interest: A deputy must act impartially. If a significant conflict arises between the deputy’s personal interests and P’s interests, it can compromise their ability to make unbiased decisions. In such cases, the court may determine that the deputy should be removed to protect P from potential exploitation.

6. Concerns about welfare decisions: For deputies managing personal welfare, decisions directly impact P’s daily life and safety. If a deputy makes choices that place P at risk of harm, neglect, or abuse (e.g., regarding living arrangements or medical treatment), the court will intervene decisively.

How friends and family can raise concerns

Recognising and acting upon concerns about a deputy’s conduct is vital for safeguarding P. Friends, family members, and other interested parties play a crucial role in bringing these issues to light. Here’s how you can raise concerns:

1. Direct communication with the deputy: Often, minor issues or misunderstandings can be resolved informally through a direct, calm discussion with the deputy. This can clarify matters and encourage necessary changes.

2. Reporting concerns to the Office of the Public Guardian (OPG): The OPG supervises deputies and investigates complaints. If you have concerns about a deputy’s conduct, report them to the OPG. They can launch an investigation, gather evidence, and, if serious concerns are found, apply directly to the Court of Protection to have the deputy removed. The OPG acts as an important first line of oversight.

3. Applying directly to the Court of Protection: If informal resolution fails or concerns are grave, an application can be made directly to the Court of Protection for the deputy’s removal. Anyone with a genuine interest in P’s welfare can make such an application, including family members, close friends, or professionals involved in P’s care. This formal application initiates a legal process the court will oversee.

What happens after an application is made?

Once an application for deputy removal is submitted:

• Evidence and reports: The court may request further evidence, detailed reports, or statements from all relevant parties to gain a comprehensive understanding.

• Court hearing: A hearing may be scheduled to formally consider whether the deputy should be removed. All involved parties, including the deputy, will have an opportunity to present their case.

• Interim orders: If there’s an urgent need to protect P from harm, the court can make an interim order, such as temporarily suspending the deputy’s powers, while the full investigation proceeds.

Should the court decide to remove the deputy, it will then determine the best course of action to ensure P’s continued protection. This could involve appointing a new, suitable deputy, or making a different order that better serves P’s needs.

Conclusion

The removal of a deputy is a significant legal step, taken only when necessary to protect the interests and well-being of a person lacking mental capacity. For businesses and individuals, understanding these safeguards is paramount. Friends and family members play an indispensable role as advocates for P. By reporting concerns through the appropriate channels – whether directly to the deputy, through the Office of the Public Guardian, or by applying to the Court of Protection – clear mechanisms ensure that deputies remain accountable, and crucially, that P’s best interests always remain the priority.

esmith@mayowynnebaxter.co.uk

www.mayowynnebaxter.co.uk