Author: Tanya Foran

Giving gifts as Deputy

Tanya ForanLeave a comment

The Office of the Public Guardian has issued new information regarding gift making as a Deputy. It can be found here :  https://publicguardian.blog.gov.uk/2020/12/16/giving-gifts-as-an-attorney-or-deputy/

As Deputy it can be tricky deciding whether to give a gift to a friend or relative of a Protected Party. It is not compulsory to give a gift unless a Court Order states otherwise. When giving a gift, the key decision is whether it is in the best interests of the Protected Party.

What is a gift?

A gift can include various options such as giving donations to charities, living rent free, giving an interest free loan or simply the purchase of a bunch of flowers.

Who can give gifts?

Under the Mental Capacity Act, the Protected Party should always be consulted before decisions are made and included as much as possible.

If you consider that the person has capacity to make a gifting decision, you should keep a record of the steps you took to make sure they did. The Office of the Public Guardian may ask you at any stage to explain your decision, or others could challenge you later.

Even if the person apparently has capacity to make a gift, you must still use care and caution when they express a desire to make one. If a substantial gift is involved, you may need to seek advice, obtain an Order from the Court or arrange for a mental capacity assessment.

When can Deputies give gifts?

Gifts can be made on special occasions such as weddings, anniversaries, birthdays, graduations, and civil partnerships. This also includes the giving of gifts on religious occasions.

What is considered a ‘reasonable gift’?

A reasonable gift will largely depend on the Protected Party’s finances. Any gifts given should not impact on their ability to pay for care for the rest of their life and should be affordable. 

What happens if a gift is given without authority?

If a substantial gift is given without authority, the Office of the Public Guardian may investigate and ask that the money is paid back or that the gifts are returned, approval could be required from the Court of Protection or the worst case scenario would include the removal of the Deputy position.

For more information please contact Tanya Foran by email at Tanya.Foran@clarionsolicitors.com.

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

Tanya ForanLeave a comment

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.