In Cumbria County Council v A  EWCOP 38, Mr Justice Hayden, Vice President, considered applications to discharge Cumbria as property and affairs deputy for seven individuals, and to appoint a solicitor deputy. The applications came to be made because Cumbria had decided that it would no longer act as deputy unless certain criteria were met, and those criteria were not met in the seven cases.
Senior Judge Hilder had initially dealt with the applications, and directed the Public Guardian to file a report dealing with matters including the cost to P of a solicitor being appointed. The annual cost would be more than double than if the Council continued to act.
The applications were then transferred to Hayden J.
The learned Judge held that, although consent is a prerequisite to a deputy’s appointment, the withdrawal of consent does not entitle the deputy to automatic discharge. The discharge of the deputy who no longer wishes to act is an exercise of the court's discretion. The guide will always, the court said, be P's best interests, including his financial interests. The reasons for the deputy seeking discharge will be relevant, but the deputy’s desire to be discharged is not determinative.
The court recorded examples of the circumstances which might make it appropriate for a professional deputy to replace a local authority deputy:
Value of P's estate. If there is no person willing to act as deputy without charge, then:
- where P has modest assets, it will generally be desirable for a local authority to act, rather than a professional deputy, owing to the difference in rates charged; and
- where P has high value assets, it will often be desirable, and not disproportionate, for a professional deputy to act
Complexity of P's estate (e.g. £100,000 in property or shares may be more difficult to manage than £200,000 in a bank account);
Personal dynamics, e.g. between the deputy and P, or between the deputy and members of P's family;
Unmanageable conflict of interest, e.g. where P has a potential claim against the authority, and where that claim cannot properly be investigated by the local authority deputy; and
P's expressed wishes and feelings showing opposition to the authority acting as deputy.
The court emphasised that these are merely indicators, and not an exhaustive list. The court also acknowledged that whilst most local authorities are disinclined to manage high value and complex estates, there are some which will do so.
The court also recorded the hugely important role that local authorities play in offering deputyship services, providing an ‘invaluable public service...’
Decisions in each of the individual cases will now be taken, in accordance with the guidance given in judgment.
Lee Parkhill, Cornerstone Barristers, acted for the Public Guardian.