Is it in P’s best interests for the Local Authority Deputy to be discharged?

The recent case of Cumbria County Council v A (2020) highlights the importance of the Deputy’s role and the process when the Local Authority no longer wishes to act as Deputy.

The Local Authority expressed a wish to cease being a property and affairs Deputy and instead, have a professional Deputy appointed for 7 individuals. However, the Court were mindful that this was likely to cost the Protected Party more than double in all cases to transfer from a Local Authority Deputy to a professional, therefore it was necessary to consider whether this was in the Protected Party’s best interests. The Public Guardian contended that generally, if a Deputy no longer consents to act, the Court cannot decline an Application to discharge, but the Court was required to consider all the facts.

The significant concern was the question of costs and there was suggestion that the Court should consider the approach taken by Cumbria County Council in no longer wishing to act as Deputy and whether this complied with Section 149 of the Equality Act 2010. The Court confirmed that they were not able to grant a public law remedy in such circumstances. Hayden J emphasised that The Mental Capacity Act 2005 and the Court of Protection reflect precisely the same philosophy and that was the underpinning of the Equality Act 2010.

Hayden J concluded that the decision to discharge a Deputy is one for the Court, acting within parameters of reasonable discretion and that they will be required to evaluate the strength of the welfare interests to the Protected Party. There can be no presumption of the conclusion and each application must be brought before the Court. The guide will always be in the Protected Party’s best interests, including his/her financial interests. The Court will focus on the impact of the Protected Party by either granting or refusing the Application. On the facts, the Application in this case was granted.

On the basis of the above, always consider the Protected Party’s best interests when determining who should be appointed as Deputy.

The judgment can be found here: https://www.bailii.org/ew/cases/EWCOP/2020/38.html

If you have any questions, please contact Tanya Foran at Tanya.Foran@clarionsolicitors.com or call 0113 246 3240.