This is one of the most important questions the Court of Protection needs to consider when deciding who to appoint as a deputy. If you are going to give someone decision-making power over all assets, that appointment has to be correct and the person you appoint has to be able to withstand scrutiny from all sides, often in complex family situations with allegations flying, and do their role with independence and integrity.
This was the tricky conundrum Senior Judge Lush had to consider in the case of Ron "the Tobacco King" (Re RP) who had business assets in USA and Europe held in complex company structures. As well as complex business affairs, Ron's personal life was equally tricky, having been married 3 times (including a short-term marriage to an Italian – that's amore….) with conflict between children from his first and his second marriage. With allegations flying, and numerous options for the Court of Protection including one of the adult children, an ex-wife, an accountant, a professional solicitor and a panel deputy – who to choose and which criteria to apply?
The Court of Protection has a discretion as to whom it appoints and has traditionally preferred to appoint a relative rather than a complete stranger, as that person will usually be familiar with the person's affairs, wishes and feelings. Family members will not be appointed where there is ongoing friction which is likely to interfere with the proper administration of the affairs and so the Court in this case looked to make a choice between the existing interim professional deputy and panel deputy. The existing interim deputy was very familiar with the case, having acted for one of the daughters of the Tobacco King, whereas the panel deputy would be coming to matters fresh.
The question for the court was how independent does an independent deputy have to be? Did the fact that the interim deputy had acted for one of the daughters preclude her from having the independence necessary to switch her role, or was there a risk she was too partisan and so could never lose the natural allegiance to one side, namely her former client?
The Court played a straight bat and appointed the panel deputy. The main reason for doing so was because the family were more likely to co-operate with a new panel deputy and it is important in deputyships to minimise ongoing conflict where it causes detriment to the administration of a person's affairs. The court also accepted that the interim deputy had been too closely associated with one of the family previously and so could be seen as being biased. As a result, she couldn't act as an "honest broker" as that previous relationship would make her more likely to favour her former client.
Lin Whitehead is a member of the OPG Panel of Professional Deputies which comprises 71 experienced professionals nationally who are allocated cases like this by the Court and Office of the Public Guardian. She commented, "Senior Judge Lush had a tricky decision to make, as the interim deputy was an experienced lawyer, but panel deputies like myself have undergone a rigorous selection process and the panel appointment of only 71 in England and Wales reflects this. The appointment of a panel deputy, skilled in investigating and bringing proceedings for recovery of misappropriated funds, was necessary here to avoid any whiff of bias and enable the family to move forward."
For the list of OPG approved panel deputies please see below:
https://www.gov.uk/government/publications/panel-d...
Link to case report:
RP, Re [2016] EWCOP 1 (05 January 2016)
If you have any concerns regarding how to manage someone's affairs as an attorney or deputy, please contact Lin Whitehead directly on 01603 693572 or email lin@clapham-collinge.co.uk
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