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15th October 2020

Unable to resign – Property and Affairs deputies must have court approval to stop acting

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The Court of Protection was asked to clarify the proper process to be followed in a situation where a Property and Affairs Deputy wishes to cease acting on behalf of a vulnerable individual. The Court held that a deputy cannot simply refuse to act and must obtain the court’s prior approval to do so.

Cumbria County Council acted as the Property and Affairs Deputy on behalf of several vulnerable individuals. When a professional Deputy applied to take the Council’s place, it supported the application and decided that it should cease to act.

The Council’s case was that the Court could not order it to continue to act as a Deputy and that doing so would be in breach of the Equality Act 2010. On the other hand, the Public Guardian claimed that the professional Deputy would cost more than double the sum charged by the Council and that this would not be in the best interests of the persons for whom the Deputy acted, contrary to the Mental Capacity Act 2005.

The Court of Protection held that an application must be made to court when a deputy no longer wishes to act. By refusing to act, the Council had not met the requirement to have its responsibilities as Deputy discharged.

When hearing a deputy’s application, a court would need to exercise its discretion reasonably. It would need to take account of factors such as the complexity of the estates being cared for, an individual’s best interests and any conflicts of interest.

When considering the Mental Capacity Act 2005 and the Equality Act 2010, a court could only decide on a deputy’s resignation request having considered the impact on the persons for whom the deputy acted and whether the deputy’s resignation promoted those persons’ best interests.

The Court of Protection confirmed that if the Council’s application was motivated by factors such as a drive to save its own costs, this would likely be contrary to the principles of the Mental Capacity Act 2005 because it would not be in the best interests of the protected persons. A court would need to take such factors into account in deciding whether to grant a deputy’s resignation application.

If you would like to speak to a solicitor about the care of a vulnerable individual, please contact a member of our team.

Case citation: Cumbria CC v A [2020] EWCOP 38