September 28, 2021
Categories Elderly and Vulnerable Clients
This week, after over a decade of struggle, an HBO documentary and a #FreeBritney campaign all surrounding a globally publicised legal battle, Britney Spears’ father – Jamie Spears – has been suspended as her conservator. Britney’s conservatorship has sparked calls for reform across the pond and led many in this country to ask whether Mr Spears’ alleged misuse of court-sanctioned power could have taken place in the UK.
Since Britney’s breakdown in her mental wellbeing in 2008, her financial affairs and personal welfare have been managed by her father in his role as her ‘conservator’. The controversial arrangement has given Mr Spears extensive control over Britney’s personal and professional life; but what exactly is a conservator and what are conservatorships?
What is a conservator and what are conservatorships?
Conservatorships are an American legal concept in which an individual is appointed by the Court to manage a second individual’s affairs who is unable to handle them themselves due to their mental capacity, age, or physical disability. The person under the conservatorship is referred to as the ‘conservatee’ whilst the person appointed to make decisions on the conservatee’s behalf is called the ‘conservator’.
Conservators can be granted control in two distinct areas: financial affairs and health and welfare. Following Britney’s breakdown in her mental wellbeing and subsequent hospitalisation, her father was appointed as conservator for both these aspects.
How similar is a deputyship to a conservatorship?
The closest equivalent system to conservatorship under the laws of England and Wales is that of ‘deputyship’. In this system, ‘deputies’ are appointed by the Court of Protection (‘the Court’) to make decisions on behalf of those who cannot make such decisions for themselves due to a lack of mental capacity (‘P’)
Similarly to the system of conservatorship, deputies can be appointed in two areas. The first, and most common type, are property and financial affairs deputies who are appointed to manage the finances of an individual who is deemed not to have the capacity to do so themselves. The second, and much rarer type, are personal welfare deputies who are appointed to make decisions regarding an individual’s medical treatment and care.
Deputies must act in accordance with the statutory principles found in s1 of the Mental Capacity Act 2005. These are:
- Every adult must be assumed to have capacity unless proved otherwise;
- An adult must be given all opportunities for help before they are considered unable to make decisions;
- A person has the right to make unwise decisions, which alone are not sufficient to prove that they should lose this right;
- Any act done or decision made under the provisions of this act must be done in the individual’s best interest; and
- Anything done for the person should be the least restrictive of their basic rights and freedoms.
Are deputies’ powers limited by law?
Deputies’ powers are also limited by the court order appointing them (‘Deputyship Order’). Every Deputyship Order clearly states the powers granted to a deputy under that order as well as their limits. If a deputy believes that they need to do anything beyond the powers granted to them, then they must apply to the Court for an extension to the Deputyship Order and also satisfy the Court that it is in the best interests of P do so.
When deciding who to appoint as a deputy the Court will consider the best interests of P, the size and complexity of P’s estate, and the principles of s1 of the Mental Capacity Act 2005 as outlined above. Case law suggests that the Court’s preference is to appoint a family member or close friend of P who is familiar with their affairs, means of communication and preferences.
The Court is happy to depart from this where it is in P’s best interests to do so and this may be where an estate is particularly large, complicated or contentious. In these circumstances the Court may appoint a professional deputy due to the additional expertise and time demands required in relation to its management. Professional deputies can charge for the fulfilment of their role, although their fees are charged either as ‘fixed costs’ (as set by the Court) or apply to have their costs assessed by the Senior Court Costs Office who will determine what costs are fair and reasonable in all the circumstances. In either instance, all actions taken by a deputy are supervised by the Office of the Public Guardian by the production of an annual report by the deputy.
What is the difference between a deputyship and a lasting power of attorney?
Deputyship v Lasting power of attorney
Although deputyships may sound somewhat similar to a lasting powers of attorney (‘LPA’), they are not the same and it is important to distinguish the two.
An LPA is a document that allows an individual (‘the Donor’) to appoint one or more other individuals (‘Attorneys’) to make decisions on their behalf. Similarly to deputyships, there are two types of LPA: one dealing with property and affairs, and the other with health and welfare issues. There are, however, some important difference between deputyships and LPAs:
- Timing and mental capacity – in order to create an LPA, the individual doing so must have the mental capacity to understand that they are handing over responsibility for their affairs to another individual. Conversely, deputyships can only be made on behalf of someone who is deemed to not have mental capacity to manage their affairs.
- Attorneys are appointed in an LPA before mental capacity is lost. A Deputy is appointed by the courts after mental capacity has been lost.
- Choice – in an LPA an individual can choose who they would like to manage their affairs in the event they lose capacity. With a deputyship order the Court will decide who to appoint to look after an individual’s affairs. This could well be someone who the individual would not have appointed if they had capacity and choice.
- Initial Costs – it costs significantly less to register an LPA – £82 – than it does to make a deputyship application – £385. There are also likely to be more legal fees and ancillary costs associated with a deputyship application such as the costs for doctors to evidence a loss of capacity.
- Supervision and ongoing costs – as mentioned above, deputies are required to report to the Office of the Public Guardian on an annual basis. Attorneys under LPAs are not required to do so; some may see this as advantageous, whereas others may feel the supervision of the court is a necessary control over the Deputy’s actions. Furthermore, there are annual deputyship supervision fees of around £325. There are no such LPA supervision fees.
- Costs for Service – Attorneys may charge for their service where a charging clause has been included in the LPA appointing them. They have no such power if the LPA is silent on fees. As discussed above, professional deputies may charge for their services. What they can charge is either set by the Court or assessed by the Senior Court Costs Office.
Preparing an LPA in advance of a loss of capacity can save time, money and stress. The deputyship system acts as a well regulated failsafe that ensures that where an LPA has not been put in place an individual’s affairs can be managed by someone else.
How we can help you
Contact Nicola August or a member of the Vulnerable client team on 01227 763939 for advice about deputyships and lasting powers of attorney.