Deputies are required by the Court of Protection to report to the Office of the Public Guardian (OPG) and as such there are adequate safeguards and monitoring in place to ensure that this essential role can be fulfilled.
The level of oversight reduces the risk of the situation Britney Spears has found herself in. The Court also carries out suitability checks to ensure that the deputy is an appropriate person to be appointed to carry out this role.
Any person over the age of 18 can apply to become a deputy but professional deputies may be appointed where there is no other person willing or able to act or where the circumstances involved are particularly complex. Their fees are subject to scrutiny by the OPG, and are either allowed as a fixed fee or following assessment by the Senior Courts Costs Office.
In Britney’s case the Bessemer Trust, a professional wealth management firm, acted as her conservators; this is not something that we see in practice in the UK as generally most professional deputies are solicitors as they understand the requirements imposed on them by the legislation, the Mental Capacity Act 2005 and indeed the OPG’s panel of Deputies is made up of solicitors.
As mentioned above, a deputyship can only be terminated in certain circumstances. These are: if the person regains capacity to make their own decisions, the Deputy is replaced or if the relevant person dies.
How does a deputyship differ from an LPA?
A deputyship and Lasting Power of Attorney (LPA) are similar in that they allow another person (or persons) to manage the affairs of another. There are two types of LPA; one appoints someone to manage property and affairs and the other allows health and welfare decisions to be made on their behalf. They key distinction between an LPA and deputyship is that for LPAs the person themselves chooses who their Attorney(s) is going to be, and as such there is a requirement that they must have capacity to make this decision and sign the form. Attorneys are not subject to background checks and in theory any person over the age of 18 could take up this role.
They are not required to report to the OPG annually and will only be subject to checks and investigation if concerns are raised. As such, concerns remain that there is a lack of safeguards in the LPA system, not just in terms of oversight but also in terms of suitability of those sometimes appointed.
