#FreeBritney - How her sad case would never happen in the UK

This article was originally published by This is Money for MailOnline

21 July 2021

Deputies are typically appointed because individuals cannot make decisions for themselves due to illness, like Alzheimers or dementia, old age or perhaps as a result of a catastrophic personal injury or medical negligence. 

Their local authority must ensure that people who are in need of care and support are protected from abuse or neglect, including financial abuse.
In addition to the safeguarding mechanisms in place under the Care Act 2014, there are also protections in place for those who are mentally unwell and cannot make decisions for themselves. 
In the UK we have two very distinct legal systems and courts that deal with mental ill health and mental incapacity, and although these regimes can apply at the same time, being subject to one regime does not mean that a person is automatically subject to the other.
Where a person, by reason of their mental ill health, poses a risk to themselves or others they may be sectioned under the Mental Health Act for assessment and or treatment.
If this had happened to Britney she would have had a legal right to appeal her section to a specialist tribunal and a plan would have been drawn up for her ongoing treatment.
The Mental Capacity Act 2005 applies if an individual is deemed unable to make the necessary decisions required to manage their own affairs.
There are fundamental principles enshrined in this legislation that a person has capacity unless proven otherwise, capacity is specific to the decision that is being made, and an unwise decision does not necessarily mean that a person doesn’t have capacity to make it.
Furthermore, any act or decision made on behalf of another must be done or made in their best interests. 
If the Court of Protection is satisfied a person lacks capacity then they can appoint a deputy for property and financial affairs and/or health and welfare.
But as explained above, the same deputy is rarely appointed for both since the court does not favour the concept of granting blanket authority over another person’s autonomy and independence.
A deputy should ensure that the person considered to lack capacity is part of and is supported in decision making, and crucially, the person's best interests are to be paramount.

What protections are there against abuse?

The Office of the Public Guardian supervises court-appointed deputies to ensure they act in the best interests of those they have been charged to support. The OPG is also responsible for investigating concerns about attorneys and taking action where necessary. 
In England and Wales, deputies are monitored by the OPG. Deputies are required to file an annual deputyship report detailing the incapacitated person’s income and expenditure, explaining any particularly large items of expenditure and also if any important decisions have been made and whether any will be made in the upcoming management year.
The deputy is also required to communicate with the incapacitated person as far as possible to help establish their wishes, needs and feelings and they would also be expected to speak with the person’s family and close friends.
Details of this would also be added to the annual report.
If someone has concerns that a deputy or attorney is not acting in the incapacitated person’s best interests, a safeguarding alert can be made to the OPG and/or the local authority or even to the police.
This can be the case for financial impropriety or welfare abuse for example. The OPG will often investigate the allegations and can apply to the Court of Protection for that deputy or attorney to be removed from their position and a replacement deputy appointed instead.
If a member of public has concerns, they can notify the OPG and/or also make an application directly to the Court of Protection to remove the deputy in question.
If the person regains mental capacity to manage their financial affairs or to deal with health and care matters, an application can be made to the Court of Protection for the appointment to cease.
Then the Court of Protection will make an order discharging the deputy so that the individual can make decisions for themselves.
Updated medical evidence would be needed showing that the person has capacity in accordance with the test under the Mental Capacity Act 2005.
Similarly, if an individual is not getting on with their deputy then the court can be asked to remove them and appoint someone new, in their best interests. 


If you have any concerns about capacity, or if you are contemplating making a LPA for the first time, please get in touch with our team for more information. 


About the author

Jemma Garside is a Senior Associate in the Private Client team specialising in Court of Protection work. She joined Kingsley Napley in January 2021.

Jemma’s practice involves supporting professional and lay deputies for individuals who do not have capacity to manage their property and financial affairs. This includes assisting them with complex applications to the Court of Protection for approval to purchase properties, statutory wills and making gifts. She also supports them with complying with their legal obligations as a Deputy including management of their finances, adaptations to properties, care planning and best interests decision making. She has a particular interest in cases where issues relating to health and welfare arise, including assisting individuals with making an application to the Court to become a health and welfare deputy.


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