Free Britney: UK ‘deputy’ system plays a vital role and is well overseen, explains a lawyer
Jemma Garside is a senior member of the private client team specializing in Court of Protection work at law firm Kingsley Napley. She explains how the British equivalent of the conservatory that Britney Spears fights against is very different for vulnerable adults.
Britney Spears has described her conservatorship as “insulting.” It controls her financial assets and her health care and general freedom of life.
Her mother says her abilities have changed since it was imposed in 2008, although her recent battle to oust her father was lost. The case is ongoing in the US.
Britney’s story is very sad and unhappy. But here in the UK it works very differently.
Vulnerable adults are the responsibility of their municipality and as such are protected by the guarantees of the Healthcare Act 2014.
Many people create a “power of attorney” and choose the people, usually close relatives and friends, who will represent their interests if they become too ill to treat them personally.
But where a person has not appointed lawyers and is deemed to have lost the authority to make decisions about their property and financial affairs or health and personal well-being, the Court of Protection can appoint a ‘deputy’.
The same deputy is rarely appointed for both. A deputy should always act in the best interest of the person and take into account his wishes and feelings.
Importantly, there are also safeguards in the UK if there are concerns about the conduct of a deputy or solicitor and these are monitored by the Office of the Public Guardian.
It wouldn’t be surprising if people see having deputies as harmful after hearing about the horrible things Britney went through.
Deputies in the UK, however, play a vital role and are well supervised and often help a person to continue living a life of dignity.
How does the British system work?
Delegates are usually appointed because individuals cannot make decisions for themselves because of illness, such as Alzheimer’s disease or dementia, old age, or perhaps as a result of catastrophic personal injury or medical negligence.
Jemma Garside: If a person is mentally fit again, an application can be made to the Court of Protection to end a deputy appointment
Their local government must ensure that people in need of care and support are protected from abuse or neglect, including financial abuse.
In addition to the protection mechanisms under the Health Care Act 2014, there is also protection for people who are mentally unwell and who are unable to make decisions themselves.
In the UK we have two very different legal systems and courts dealing with mental health issues and mental incapacity, and while these regimes may apply at the same time, being subject to one regime does not automatically mean that a person is subject to the other.
When a person, because of his mental ill health, poses a risk to himself or others, he may be classified under the Mental Health Act for assessment and/or treatment.
Had this happened to Britney, she would have had a legal right to appeal her section to a specialized tribunal and a plan would have been drawn up for her further treatment.
The Mental Capacity Act 2005 applies if a person is deemed unable to make the necessary decisions necessary to manage their own affairs.
Lasting Power of Attorney helps families stay in control when illness or accident strikes
Why you need this and how to set it up. Read more here.
What happens if you or a family member gets sick without an LPA? Read more here.
There are fundamental principles enshrined in this legislation that a person has ability unless proven otherwise, ability is specific to the decision being made, and an unwise decision does not necessarily mean that a person does not have the ability to make it.
In addition, any act or decision taken on behalf of another must be done or taken in their best interest.
If the Court of Protection finds that a person is incompetent, it may appoint a deputy for property and financial matters and/or health and welfare.
But as explained above, the same deputy is rarely appointed for both as the court does not favor the concept of granting general authority over the autonomy and independence of another.
A deputy must ensure that the person deemed inadequate is included in and supported in decision-making, and it is critical that the person’s best interests come first.
What safeguards are there against misuse?
The Public Guardian’s Office oversees court-appointed deputies to ensure they act in the best interests of those they are required to support. The OPG is also responsible for investigating concerns about attorneys and taking action where necessary.
In England and Wales, deputies are controlled by the OPG. Deputies are required to submit an annual alternate report detailing the incapacitated person’s income and expenses, explaining any particularly large expenses and also whether any major decisions have been made and whether they will be made in the coming board year.
The deputy is also required to communicate with the incapacitated person as much as possible to ascertain their wishes, needs and feelings and is also expected to speak with the person’s family and close friends.
Britney Spears: She described her conservatorship in the US as ‘insulting’
Details on this would also be added to the annual report.
If someone is afraid that a deputy or lawyer is not acting in the interests of the incapacitated person, a safety warning can be issued to the OPG and/or the municipality or even to the police.
This may be the case, for example, in the event of financial impropriety or benefit abuse. The OPG will often investigate the allegations and may request the Court of Protection to remove that deputy or lawyer from office and appoint a replacement deputy instead.
If a citizen has reservations, he can inform the OPG and/or also submit a request directly to the Court to dismiss the deputy in question.
If the person is again mentally able to manage their financial affairs or to manage health and care issues, an application can be made to the Court of Protection to terminate the appointment.
Then the Court of Protection will issue an order to dismiss the deputy so that the individual can make decisions for himself.
Up-to-date medical evidence is required showing that the person has capacity in accordance with the test under the Mental Capacity Act 2005.
Likewise, if a person cannot get along with his deputy, the court may be asked to remove him and appoint a new one, in their best interest.
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