Attorneys and deputies are the persons appointed to look after your financial and personal affairs in the event of loss of mental capacity. An individual has power, whilst he has mental capacity, to appoint attorneys to look after his affairs; if there are no valid attorneys appointed in the event of loss of capacity, the Court of Protection appoints deputies to act.
Either role is extremely important, with a lot at stake if the wrong decisions are made, and requires experience of managing finances, knowledge of what would be in the best interests of the person for whom the attorney/deputy is acting, and sufficient understanding the of Mental Capacity Act 2005 and its related Code of Practice. However, as we are increasingly finding, attorneys and deputies fall short of the standards required, resulting in mismanagement of the affairs of the affected person, disputes and potential court action for their removal.
This is what happened in the case of Re GM: MJ and JM v The Public Guardian (2013) MHLO 44 (COP) ("Re GM"), where two deputies were stripped of their roles after abusing their power to make gifts on behalf of the person for whom they were acting and involving gifts of £150,000 to themselves. The case highlights the need for attorneys and deputies to be carefully selected so as to avoid potential problems. Where they can, clients should always appoint attorneys in preference to leaving it to the Court to appoint deputies after the event, and when doing so should consider whether the person they have selected has the right skills for the role. A person who is a close friend, may be able to act in the client's best interests but they may not necessarily have the right level of experience of financial management and an appreciation that a certain understanding of mental capacity law is required.
Ann Stanyer, a partner in the private client team at Wedlake Bell and an expert in elderly client and Court of Protection work, was interviewed by Lexis Nexis on 9 July 2013 for her views on these issues. You can read the Lexis Nexis interview for further information on the Re GM case and its impact on attorneys and deputies here.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
