Why the Court of Protection (COP) is reluctant to discharge and replace a professional deputy without good reason
Her Honour Judge Hilder in the recent case of Kambli v The Public Guardian (2021) highlighted some significant points of consideration for the COP when deciding whether it was appropriate to discharge and appoint a replacement panel deputy. The case concerned MBR.
MBR was born on 1 November 2006 and sadly sustained cerebral palsy due to medical negligence shortly after his birth. He has limited vision and hearing and is unable to communicate verbally. An assessment carried confirmed that he was unlikely to gain capacity to manage his property and affairs when he reached adulthood.
This case is significant as Mr Kambli was first appointed in 2019 as a replacement deputy following the discharge of three previous deputies who had all been appointed to act on behalf of MBR in respect of his property and affairs. The COP recognised that a previous deputy's assessment of the matter as "a particularly challenging" case was well founded.
On his appointment, it was agreed that Mr Kambli would offer the cultural understanding and language which the previous deputy identified as important.
The order appointing Mr Kambli restricted expenditure on adaptation works on MBR's property to £190,000. However, on 13 August 2020, Mr Kambli applied for discharge for his appointment and the appointment of another panel deputy
By an order made on 21 October 2020 the application for discharge of the deputyship appointment was refused, noting in particular that there had already been an exceptional turnover of professional deputies in this matter and that further avoidable costs had been incurred which ultimately reduced the funds available to meet the needs of MBR.
Mr Kambli sought reconsideration of his discharge application, but an order made on 10 December 2020 recited that the COP was still not satisfied that his discharge was in the best interests of MBR. However, Mr Kambli was permitted the opportunity to make oral submissions should he wish.
During a hearing on 19 May 2021 the COP considered the submissions of the parties and highlighted some significant points it had considered when deciding whether it was appropriate to discharge Mr Kambli and appoint a replacement deputy.
Her Honour Judge Hilder stated the following key point:
"When a deputyship encounters difficulties, the response of the Court should not be to change the appointment as default response. Changing deputy inevitably incurs costs which could otherwise be avoided and risks being perceived as 'rewarding' negative behaviour, which in turn undermines the prospects of future stability. Rather the Court should probe the actual circumstances, with a view to salvaging working relationships if possible."
It is evident from the above that the COP is hesitant to remove a professional deputy unless it is absolutely necessary. It would instead prefer that relationships are salvaged with the best interests of the person lacking capacity to remain at the forefront of those involved with their care.
The COP has a wide discretion of available powers and could have decided when coming to its decision that either of the following, for example, was in MBR's best interests:
- Increase supervision; or
- Implement a contact and behaviour plan.
In this case, the COP decided that the current deputyship arrangements were not "operating appropriately" and could not be restored. Mr Kambli was discharged on the basis that it was in the best interests of MBR.
Two distant relatives were appointed to act as joint property and affairs deputies until 1 October 2022.
Elle McDonald is a solicitor specialising in will and trust disputes and contentious Court of Protection. If you have any queries about the topic of this article please do not hesitate to contact Elle here.