In November, it was announced that Britney Spears has been able to end the conservatorship she’d been under for nearly 14 years. In the US, this role is also called guardianship. We know it as a Deputyship.
Britney’s began in 2008, when her father, Jamie Spears, petitioned the Court for legal authority over his daughter’s life. At the time, she was divorcing Kevin Federline, having a custody battle over their children, and undergoing abuse from paparazzi. He had concerns over her mental health as she was behaving erratically.
Terminating the conservatorship means Britney now has the power to make her own decisions about her career, finances, personal life and medical care.
Conservatorships for people like Britney are rare. The usual conservatorship is for people who lack the capacity to make certain decisions and so need the support of a third person, overseen by the Court, to manage their day-to-day affairs.
In England and Wales, Deputyships are commonly used where a vulnerable person has dementia, is living with a mental illness or is, for one reason or another, unable to manage their day-to-day affairs. This person is known in the UK as a ‘protected person’.
Are you caring for a vulnerable family member?
If the person has the power to make their own decisions but there is a concern that they may lose capacity in the future, it’s wise to set up a Lasting Power of Attorney so it’s ready to be activated if required. You can arrange separate attorneys to handle health/welfare and financial/property matters and they only become valid when registered.
If the person already lacks the power to make their own decisions, perhaps because of learning difficulties, dementia, or a brain injury, then someone who is able to protect the best interests of the person (such as a family member) can apply to the Court of Protection to act as a Deputy. Once authorised, the Deputy will be able to manage their property, financial affairs, health and personal welfare, governed and protected by the Court through safety measures such as insurance and reporting requirements.
Among other things, the Court will:
- Appoint a Deputy
- Monitor a Deputy
- Remove a Deputy
- Resolve disputes
Becoming a Deputy If your loved one has lost capacity, we can sensitively help with your application to act as their Deputy. You must be over 18 to act, and it can be a long and complex process that has to be handled correctly. Otherwise, there is a risk that the Court of Protection will appoint someone you don’t want, or that someone within the family may oppose your application.
If you are struggling with knowing who to appoint, often, a family member will be most suitable. However, you can also have a family member appointed as a lay Deputy with a solicitor as the professional Deputy to provide additional support and security. A solicitor can also be appointed solely – in these circumstances, a partner of the firm is the best option. Please let us know if you’d like us to do that for you.
Provided there are no contentious issues and the matter is straightforward, the Court of Protection expect that solicitors keep costs low in advising and preparing the application for a Deputyship appointment. This is why we offer a fixed fee, in line with Court of Protection guidance, for Deputyship applications (court fees are additional). This fee can be applied for from the person themselves, and we would always make that application to Court unless otherwise instructed.
Only if the matter becomes contested or complex would we divert from the fixed fee, and this usually becomes quite apparent from the outset. To discuss these fees, please contact our team and we’ll explain them.
Being a deputy
It’s a big responsibility. You must be over 18, and operate following the principles of the Mental Capacity Act 2005, always acting in the person’s best interests. You may have to manage investments, complete tax returns, keep detailed records, and you will have to submit an annual report to the Office of the Public Guardian (OPG) explaining the decisions you’ve made on your loved one’s behalf. You might even have to make a Will for your loved one, and distribute gifts from the estate when they die. Our specialist team can help with all of this.
As Deputy, you’ll be repaid for ‘reasonable’ expenses you incur. So that your loved one is well protected, the Court of Protection are very strict on the monitoring of reasonable expenses (unlike the Britney case, where her conservators reportedly took a percentage of her income as well as a salary).
If there’s a dispute
There is a risk that your relations might dispute that the person has lost capacity, or might object to you being appointed as their Attorney or Deputy. For example, they could disagree with your decision to put your loved one into a care home, sell their house, or receive certain medical treatment. If such disputes arise, you can depend on our legal expertise to help protect you and your vulnerable family member.
What this means to you
As you can see, it can be a tricky area. That’s why most people in the UK seek support from a legal professional in making the application, and many also appoint a legal professional to act as joint Deputy, to oversee the arrangement and help handle affairs.
For more information, please contact us on 01938 552545 (Welshpool) or 01686 625134 (Newtown).