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Are some parties being 'Overprotected'? - US Conservatorship vs English Deputyship

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About Shanice

By Shanice Golder

Following the recent UK release of the documentary, “Framing Britney Spears”, the case of the court-ordered conservatorship of the singer Britney Spears has been in the headlines.

This article looks at US conservatorship and the English equivalent, Deputyship. Both appointments grant power to an individual to act on another individual’s behalf when they do not have the requisite capacity to make such decisions themselves.

The conservatorship

Since 2008, after growing concerns over Britney Spears’ mental health and her ability to make decisions for herself, Britney’s father has been the holder of a conservatorship which gives him the power to make decisions on her behalf in relation to her career and finances.

In the US, a conservatorship is an appointment by a judge which assigns a responsible person or organisation (the “conservator”)  to care for another person who has lost the ability to make decisions for themselves (the “conservatee”). The conservator can make decisions, amongst other things, about the conservatee’s finances, collect their income and locate and take control of all their assets.

Disputing the conservatorship arrangement

In recent years, there has been increasing public apprehension, seemingly fuelled by the social-media driven ‘#FreeBritney’ campaign, regarding Britney’s father over-exerting his powers under the conservatorship to control her life, and litigation has been commenced to review his conservatorship.

Deputyship

In England, under the Mental Capacity Act 2005 (MCA 2005), where a person has lost capacity and has not made an Enduring or Lasting Power of Attorney, an application can be made to the Court of Protection to appoint a Deputy to make decisions for that person. If the application to the Court of Protection is successful, they will provide a court order which sets out the Deputy’s role and responsibilities.

Duties of a Deputy

Deputies are often appointed to deal with an individual’s property and financial affairs when they have lost capacity. The MCA Code of Practice sets out the duties of Deputies. In all circumstances, a Deputy must act in the best interests of the person who lacks capacity, following the statutory principles of the MCA 2005, and only make decisions the court has given them authority to make. 

A Deputy must act with due care and skill and not take advantage of their situation. They must act in good faith, respect the confidentiality of the person for whom they act, and they must comply with the directions provided by the Court of Protection and must not delegate their duties.

If the Deputy is required to make a decision outside of their appointment, an application must be made to the Court of Protection to authorise that decision.

Disputes over a Deputyship

As demonstrated by the issues deliberated in the case of Britney Spears, unfortunate situations can occur whereby concerns arise as to whether a Deputy is acting in the best interests of the person who lacks capacity or in breach of their duties.

Where such concerns arise, and if appropriate, a discussion can be had with the Deputy directly, in order to establish whether a satisfactory explanation can be provided. If the Deputy is unable to provide an adequate response, a complaint can be made to the Office of Public Guardian who may conduct an investigation into the actions of the Deputy and establish whether any steps need to be taken to remove the Deputy or reduce their authority. Alternatively, if you are an interested party, an application can be made directly to the Court of Protection to remove the Deputy.

Removal of a Deputy

The Court of Protection has the power to revoke the appointment of a Deputy, or to vary the powers they have, where it is satisfied that the Deputy is not acting in the individual’s best interests or contravenes the authority granted to them.

How we can help you

If you have any concerns about the actions or conduct of a Deputy and need advice, please get in touch with our dedicated team of expert solicitors who will be happy to assist you.

For further information, please contact tiggy.hawkesworth@twmsolicitors.com.

Becoming a Deputy is an important responsibility, and we recommend seeking legal advice. At TWM, we also specialise in Court of Protection applications and our solicitors would be happy to assist you with the documents needed for a Deputyship application, or alternatively, we can assist with Lasting Powers of Attorney for people who still have capacity to make such appointments.

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