Who should be appointed Deputy?

The recent case of NKR v The Thomson Snell and Passmore Trust Corporation Ltd [2019] EWCOP 15 concerned an application to the Court of Protection for the discharge of the appointment of an existing professional property and affairs deputy and the appointment of another instead. The discharge of the existing deputy was agreed but there was an issue as to who should be appointed instead.

Background 

MBR was 12 years old and sustained cerebral palsy as a result of medical negligence shortly after his birth. MBR had received a significant personal injury award of damages and in anticipation of the award, a property and affairs deputy (Wrigleys Trust Ltd) was appointed in 2012. However, difficulties arose and MBR’s mother made an application to the Court for the deputy’s discharge and her own appointment as deputy instead. Ultimately, the Wrigley Trust Ltd appointment was discharged and the Thomson Snell and Passmore Trust Corporation Ltd appointed as deputy in 2017.

MBR’s mother made a further application to the Court in 2018 for the replacement deputy’s discharge and her own appointment as deputy but this time a joint appointment with Ms Sood who described herself as a “Direct Access Barrister.”

The deputy agreed that the relationship with MBR’s parents had broken down “to such a degree that we no longer believe that we are able to act in MBR’s best interests.” However, given various concerns around MBR’S finances, the deputy felt that a suitably qualified and experienced professional deputy should be appointed in their place.

The application went to a Dispute Resolution Hearing.

As a result of the hearing, it was agreed that MBR’s mother no longer sought her own appointment as deputy but no agreement was reached as to who should be appointed as replacement deputy. MBR’s mother wished for Ms Sood to be appointed and her second choice was a particular panel deputy, Mr Kambi. These preferences were based on MBR’s mother considering they had a good understanding of the family’s cultural and religious beliefs. The deputy preferred the appointment of Mr Kambi rather than Ms Sood due to his experience. Therefore, the Court was left to consider whether Ms Sood or Mr Kambi should be appointed as deputy.

Directions were made for further evidence and statements. The matter was then referred to the judge for consideration on the papers.

The Court’s decision

The Court must be satisfied that the person whose appointment is under consideration is capable of discharging the responsibility properly.

In the earlier case of Re AS; SH v LC [2012] MHLO 113 (COP) Senior Judge Lush set out “generally speaking” an order for preference of candidates for appointment as deputy. In this order for preference, a panel deputy is included “as deputy of last resort” after a “professional adviser, such as the family’s solicitor or accountant.”

The judge was not aware of any previous appointments of a barrister as professional deputy. Based on the information presented, the judge was willing to accept Ms Sood was personally and professionally a suitable person to hold a deputyship. However, the judge also had to consider the alternate option identified in this case, the panel deputy, Mr Kambi.

The breakdown of two deputyships demonstrated this was a particularly challenging deputyship and the concerns of the current deputy appeared well founded.

Ms Sood had not confirmed her approach to the cost of insurance and the judge was concerned about the likely extra financial burden to MBR.

Taking into account all matters, the judge decided it was in MBR’s best interests for the panel deputy to be appointed as replacement deputy.

Do we still need professional deputies?

Whilst it is a true that you don’t have to have a professional deputy, no two cases are the same and sometimes there is no one willing to be deputy or able to do it.

If an individual has been injured and is making or has made a personal injury claim for compensation then there is a strong case for having a professional deputy. In fact, the Court is likely to insist on a professional deputy where there is or is likely to be substantial assets as the Court wants to be satisfied that money will be managed properly and that decisions are made in the individual’s best interests. The role of deputy can be onerous and involve dealing with complicated matters. A good professional deputy will work with you to make life easier. Professional deputies are experienced in handing large sums of money and dealing with the complex and often sensitive issues that arise from sustaining such an injury, for example purchasing and adapting a property and putting in place a care team, both during the claim and in the years that follow.

For more information on professional deputyship and how we can help please contact our Court of Protection team by email on cop@boyestuner.com.