The recent case of Re CJ: Public Guardian v MP, 2015 EWCOP 21, has confirmed that the Court of Protection will not tolerate persistent breaches of a deputy’s accounting obligations.
Duties of a Deputy in the court of protection
MP was appointed to act as deputy on behalf of his 65 year old partner (referred to as CJ), having lived with her for 25 years. MP was appointed as CJ’s deputy in 2010, following a stroke CJ had some years before.
The Office of the Public Guardian (OPG) made an application to the Court because they were concerned that MP was not complying with his duties as a deputy. The OPG complained that MP:
- Had not filed any accounts on behalf of CJ since being appointed as a deputy.
- Had not paid the yearly supervision fee of £88.00
- Refused entry to an OPG worker, who attempted to visit CJ.
- Invoiced the OPG for the time he spent corresponding with them.
The district Judge who considered the OPG’s application in the first instance, granted an Order which outlined that MP should produce and submit the yearly accounts and to generally cooperate with the OPG staff.
MP refused to do this and subsequently applied for the OPG’s Order to be reconsidered. The application was heard by Senior Judge Lush at the Court of Protection. MP produced accounts of his business and was able to show that he had not used his partner’s funds inappropriately. MP also apologised for sending the invoice to the OPG, but felt that the OPG’s involvement was disproportionate. Given that the OPG had attempted to work alongside MP prior to issuing proceedings, it seems that the OPG was limited in what further steps it could take.
Senior Judge Lush determined that he was ‘absolutely certain’ that there had been no dishonest misuse of CJ’s funds. Nonetheless, Senior Judge Lush refused to reinstate MP’s deputyship, stating that:
‘To turn a blind eye to MP’s willful refusal to comply with his duties would erode and undermine the safeguarding work carried out by the OPG’s supervision and compliance teams, which cannot possibly be in the public interest”
When explaining his decision not to reinstate MP as CJ’s deputy, Senior Judge Lush explained that reinstating MP would essentially circumvent the Court’s duty under international human rights law, to ensure that the vulnerable people under the Court’s protection were protected from abuse.
The Judge also appointed a panel deputy to take MPs place and stated that an enquiry should be conducted, to ensure that CJ’s affairs were managed in the least restrictive way possible.
Breach of court of protection accounting requirements
So why did the Court take such a dim view of MP’s conduct? Clearly he had CJ’s best interests at heart and was not found to have financially abused his position as CJ’s deputy. This is in direct contrast Re GM: MJ and JM v The Public Guardian (2013) EWHC 2966 (COP), (2013), a case we have commented upon elsewhere on this site.
Section 19(9) Mental Capacity Act 2005, gives the Court authority to:
a) Require a deputy to take out a security bond as the Court thinks fit
b) To require the deputy to submit reports as and when the Court sees fit.
MP was clearly in breach of the second element of the accounting requirements. On the surface the breach seems to be a minor administrative error. However the breach goes much deeper than this. By refusing to provide the OPG with yearly accounts, MP was preventing the OPG from correctly supervising CJ’s financial affairs.
There have been numerous recent cases highlighting a deputy’s fraudulent use of a donor’s funds. The OPG’s involvement in a vulnerable person’s financial affairs is an essential safeguard against the financial abuse of a person who lacks capacity.
The potential impact of MP’s breach could have been that CJ’s money was fraudulently used. Without yearly accounts, the OPG is unable to protect the financial interests of the vulnerable people they protect. Although CJ did not come to any harm in this instance, MP’s refusal to work alongside the OPG was an indication that he was not a suitable deputy. Had MP complied with the OPG’s request in the first instance it is unlikely that he would have been removed as CJ’s deputy.
Unfortunately it is CJ who has lost out overall.
However, the Court did direct that investigations should be made into how CJ’s best interests could be served in the least restrictive way possible. It could be that another family member can be appointed to monitor CJ’s finances.
If you are a deputy and are not sure what the Court requires you to do, please contact us on 0808 139 1606 for a free informal chat about how we can help you and the legal costs that are likely to be involved.