Can an office holder act as a Deputy?

The recent case of Re SH [2018] EWCOP 21 answers the question as to whether the Court can or should appoint as Deputy the holder of a specified office or position rather than a named individual.

Background

An application was made by the current holder of the post for the appointment of “The Head of Business Development & Client Finance” of Focus Independent Adult Social Work C.I.C. rather than a named person as property and affairs Deputy for “SH”.

SH was 71 years old and lacked the capacity to manage her own property and affairs. SH had modest assets.

The September 2018 hearing considering the following:

1. Whether the Court can, or should, appoint as Deputy the holder of a specified office or position (as distinct from a named individual holding such office at the time of the appointment);
2. If such appointment is made, the effect of any change to the holder of the office on the Deputyship; and
3. If the Court is minded to appoint the applicant as property and affairs Deputy for SH, whether there should be any specific requirements in the order of appointment in respect of notification to the Court and/or the Office of the Public Guardian of any change to the holder of the office of Head of Business Development and Client Finance at the applicant company.

At the hearing additional background issues were also addressed. Namely:

1. Whether acting as property and affairs Deputy is within the powers of Focus Independent Adult Social Work C.I.C.; and
2. The extent of the professional indemnity insurance cover held by Focus Independent Adult Social Work C.I.C. and the Court’s approach to the application in light of any limitations.

The Office of the Public Guardian objected to an appointment of the Head of Business Development & Client Finance without specifying the name of the individual holding such post at the time of the appointment. This was based on concerns that the person initially selected may leave and his/her replacement may not be suitable.

The appointment of a Deputy is a ‘best interest’ decision for the Court – a generic role would deprive the Court of that decision if or when the postholder left. Whilst this could be overcome by returning to the Court if the postholder ceases to hold office, this would have a financial impact to the individual the application concerns.

The Court’s decision

Having considered all of the information available, the Court was satisfied that Focus Independent Adult Social Work C.I.C. was a suitable organisation and that the current holder of the office of Head of Business Development & Client Finance was a suitable person to be appointed as property and affairs Deputy for SH.

The appointment of an office holder continues with successive holders of the office. The Deputyship order specified that the holder of the office of Head of Business Development & Client Finance at the date of appointment was to notify the Office of the Public Guardian if they ceased to hold that post and/or if there is any change to the ability of Focus Independent Adult Social Work C.I.C. to carry out the functions of a Deputyship.

The Court was not satisfied that sufficient professional indemnity insurance cover was in place and a security requirement of £10,000 was set having in mind SH’s known assets, the nature of potential risk and the absence of alternative protection.

Do we still need professional Deputies?

Now we know that the Court is willing to appoint as Deputy the holder of a specified office or position rather than a named individual, as long as certain conditions are met, the question may be asked by some as to whether a professional Deputy is still worth it.

Whilst it is a true that you are not required by law 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. 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 an injury which limits a persons capacity, 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@boyesturner.com.