Posted by Laura Christodoulou, Solicitor
#FreeBritney: only in America? – How deputyships work in England & Wales
Laura Christodoulou explains how the deputyship system in England and Wales works, and how it protects individuals that lack capacity, contrasting it to Britney’s conservatorship in the US.
The latest lockdown must-see documentary “Framing Britney Spears” recently aired in the UK, and shone an uncomfortable media spotlight on the US conservatorship system.
With the #FreeBritney movement trending it is an upsetting watch as it details the pop icon’s loss of freedom to manage her financial affairs, following the court appointment of her father Jamie Spears 12 years ago.
This conservatorship arrangement conflicts with Britney’s present wishes, and she desires to have her father removed. But how does Britney’s situation translate here under the equivalent deputyship system?
The Court of Protection and the role of the deputy
In England & Wales, when a person is unable to make decisions relating to their property and finances or their health and welfare; a deputy can be appointed by the Court of Protection (COP) to make these decisions on their behalf.
However before a deputy’s appointment can even be considered, the law sets out some key statutory principles that must be considered:
- 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 do not have capacity;
- Any act done or decision made on behalf of the individual 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.
In order to determine whether a person has capacity, a capacity assessment is carried out by a suitably qualified medical practitioner to determine if they do not have capacity to make these decisions. If this proves to be the case, then a deputy can be appointed.
A deputy must be over 18 years old and can be a family member or friend, or a professional deputy. The deputy must be able to prove their suitability to the COP, and the COP will not appoint people who have a history of mismanaging money or have been declared bankrupt.
Often for complex high-value estates like Britney’s, a professional deputy will be the most appropriate given their ability to be impartial and to manage complex situations. Regardless of whether a deputy is a professional or not, all deputies are supervised by the Office of the Public Guardian and are required to submit a report every year to them, which will include annual accounts.
Decision-making and acting in best interests
Even when a deputy has been appointed, before they make a decision on behalf of an individual, they must consider if the individual can make the decision themselves at that point in time. If not, they must make the decision in that individual’s best interests.
In practice this means working with individuals to ensure they are as empowered as possible. So, even if a person can’t make a decision, an individual’s views are considered as a part of the decision along with any other people relevant to the decision, such as their family.
Costs of a deputy
In the documentary, ‘Freeing Britney Spears’ it appeared that both Britney’s father and the other professionals involved were paid a percentage of her income and a salary.
Here in England and Wales, the costs of a deputy will be controlled by the COP and are subject to intense scrutiny. This includes the Court setting the hourly rate and scrutinising every minute of time spent dealing with the person’s affairs before they will approve the amount charged.
Often a family member acting as deputy would only be entitled to be paid if the Court allowed it, and in most cases this would be limited to reasonable expenses incurred whilst carrying out their role.
Although it may not be as applicable to someone with Britney’s assets, the Court will also ensure that any costs incurred are reasonable in comparison to a person’s assets.
Removal of a deputy
Finally, there is strong emphasis on a deputy working with the individual and, whilst we do not know all the details of Britney’s case, it would be usual for the Court to carefully consider this relationship and any views of the individual as to who should be deputy.
Therefore where the relationship between the deputy and the individual, or their family members, has irretrievably broken down it is not unusual for a different deputy to be appointed.
In addition, as capacity is time- and decision-specific and some people’s conditions improve rather than deteriorate over time, it should also be noted that it is possible for deputies to need to retire because the client has regained the relevant capacity to manage their own property and financial affairs, or health and welfare decisions. It is of course a welcome development when this occurs.
I hope Britney will achieve the outcome best suited to her circumstances. It goes to show just how important it is for an individual to have the correct team built around them.
If you have any questions about changing or removing a deputy, please contact our Compensation Protection team.
0800 923 2073 Email us
Keeping you informed about Compensation Protection news, events and opinion.