If publication of cases raises awareness among the general public of the benefit of planning for incapacity, that alone will make it worthwhile. Many people are still unaware of what could happen to their assets if they become incapable of managing them or what the options are in this respect.
In England, the Court of Protection is empowered to make decisions concerning the property and finances, and welfare and healthcare, of adults who lack capacity. However, adults can plan for who should take responsibility for their finances in these circumstances by making Lasting Powers of Attorney, naming attorneys of their choosing to make these decisions on their behalf. Where Lasting Powers of Attorney are in place, the Court will only intervene if the choice of attorney is disputed on registration based on a set list of objections or if, after registration, anyone raises concerns about the attorneys’ performance with the Office of the Public Guardian, which may refer the matter on to the Court.
Adults who do not make Lasting Powers should understand that they may have no say in who looks after their finances following incapacity – the Court of Protection will decide who gets to act as ‘deputy’. That’s why cases such as that of Re BM ( EWCOP B20) are interesting because they demonstrate how the Court will go about choosing who gets to act as deputy in less than clear-cut cases.
In Re BM, the incapacitated adult (BM) had no close family – just half-siblings that he had no significant contact with. BM suffered an aneurysm and lost capacity suddenly. With no Lasting Power in place, two individuals stepped forward to act as his deputy: the pastor in whose church BM had worshipped and a cousin of the half-blood, who opposed the minister’s appointment. In essence, as the judge noted, this was a battle between BM’s ‘two different support networks’.
The judgment confirms that the Court prefers family members to act as deputies wherever possible:
“… traditionally the court has preferred to appoint a relative or friend as deputy (if it is satisfied that it is in P’s [the incapacitated adult’s] best interests to do so), rather than appoint a complete stranger. This is because a relative or friend is usually familiar with P’s affairs and aware of their wishes and feelings. Someone with a close personal knowledge of P is also likely to be in a better position to meet the obligation of a deputy to consult with P, and to permit and encourage them to participate, or to improve their ability to participate, as fully as possible in any act or decision affecting them. And, because professionals charge for their services, the appointment of a relative or friend is preferred for reasons of economy.”
However, the judge then proceeds to give helpful guidance on when family members or friends are not likely to be appointed, and noted that:
“No one has an automatic right to be appointed as deputy. The Court of Protection has a discretion as to whom it appoints …”
So who won? Well, the fact that the person named as executrix in BM’s last will, executed some seven years prior to his incapacity, favoured the half-cousin’s appointment carried some weight with the Court and the half-cousin got the job.
Unfortunately BM’s own wishes as to his choice of deputy were unascertainable. However, the matter may not have ended up in court (and published for all the world to see, albeit in an anonymised form – on this occasion) if he had used a Lasting Power to demonstrate unequivocally which candidate he favoured.