Regulation  

Could #FreeBritney happen in the UK?

  • Describe the difference between Deputy ships and conservatorships
  • Explain how deputyships work in the UK
  • Identify the advantages of deputyships
CPD
Approx.30min
Could #FreeBritney happen in the UK?
 Reuters/Eduardo Munoz

The case of Britney Spears raises questions on what is the equivalent of a conservatorship in England and Wales and how this works in practice.

In this country, where a person lacks the necessary mental capacity to manage their affairs, and they were unable to make prior arrangements in the form of a Lasting Power of Attorney when they did have capacity, the Court of Protection will appoint a deputy(s) to assist the person so that necessary decisions can be made on their behalf.

The Court can appoint a deputy for both property and financial affairs and health and welfare but it is extremely rare for the same Deputy to be appointed for both; in practice deputyships for health and welfare are rare.

Another key difference is that whilst a conservatorship will only apply in the States allocated (Britney’s apply in California, Louisiana, Hawaii and Florida) and for a fixed time period, a deputyship will apply throughout England and Wales, is time limitless and can only be terminated in certain circumstances.

What to do if someone lacks capacity to manage their affairs?

The Court of Protection exists to help people who are no longer capable of making some or all of their own decisions, by virtue of an illness such as dementia or perhaps as a result of personal injury or medical negligence.

Where a person is unable to manage their financial affairs an application can be made to the court to authorise the appointment of a deputy for Property and Affairs. Medical evidence is required to prove to the court that a person lacks capacity to deal with the specific issue at hand.

The legal test for capacity is that by virtue of an impairment of the mind they are unable to make decisions for themselves as they cannot understand information relevant to the decision, retain information relevant to the decision, weigh up the pros and cons of their decision and communicate their decision.

Deputies must always act in the best interests of the person concerned and the Mental Capacity Act 2005 sets out a list of factors which must be considered when making a best interests decision; this includes allowing the person to take part in the decision, taking into consideration their wishes and beliefs and consulting with family, friends and carers.

What is the role of a deputy?

A deputy appointed to manage the property and affairs of another must keep the person’s money separate from their own and must not spend the money on themselves. The deputy will deal with all investment and spending decisions, ranging from pension fund management to paying bills, ensuring access to state benefits, insuring property and paying for care, including the employment of a team of carers.

Deputies will also need to take responsibility for the management of a person’s property although they may need further permission from the court to buy or sell. Where there is a large sum of money the deputy should consider whether and how to invest it.