The role of court appointed Deputies in family law
The world is becoming more and more sophisticated in terms of Family Law, full of different and unique family setups. With the variety of options now available to protect assets, it is no longer acceptable for a Deputy to bury their head in the sand or be ignorant to them.
This article highlights some of the most important issues and their potential to impact upon the Protected Party’s personal welfare or assets. These are all the more important where your client lacks mental capacity due to an accident or injury and needs to preserve as much of their assets as they can.
As a Court appointed Deputy of a Protected Party, whether you’re looking after welfare or property and affairs, you will have many duties and obligations.
Many of these are dictated by Statute and the Code of Practice, but what are a Deputy’s obligations with respect to Family Law issues?
Who qualifies as a Protected Party (PP)?
A Protected Party (PP) under the Mental Capacity Act 2005 is someone who does not have mental capacity to make some or all decisions for themselves. Quite often they will have received substantial damages from a clinical negligence or personal injury claim and some or all of those funds will be intended to pay for the costs of living and daily care.
What do you, as a Deputy need to think about if your client tells you that he is about marry, or is going to move his partner into his property?
Should you consider advising about a Pre-Nuptial Agreement or Co-habitation Agreement? What knowledge must you have, if any?
Alternatively, if your client is going through a separation or divorce (perhaps you are aware the relationship has been rocky for some time), there will be very specific and important considerations that may impact upon the PP’s assets as a result of a divorce. All of these will need to be thought about.
What can you do in the PP’s best interests?
The best place to start is with the Mental Capacity Act 2005.
This Act sets out that some types of decisions such as marriage or civil partnership, divorce, sexual relationships, adoption and voting can never be made by another person on behalf of a person who lacks capacity, as they are so personal in nature.
In addition, there are different tests for capacity, so there will be one test when considering a person’s capacity to invest funds and another when looking at capacity to, for example, marry or make a Will.
Whilst a PP may be able to make a decision for example, about a divorce, he may not be able to conduct the necessary litigation and will therefore require legal representation, which is where you come in.
Appointed Deputies and Divorce
Divorce is uniquely important to the PP, particularly where he has received substantial damages intended for care costs or loss of income where he is unable to work.
The Deputy will need to be aware that under the Matrimonial Causes Act 1973, damages gained as a result of a clinical negligence claim or personal injury, even when intended for care, are not ring-fenced from matrimonial division.
It is therefore possible for those funds to be distributed to the PP’s spouse for their capital or income benefit, particularly where there are children of the family. The leading authority upon this issue is Mansfield v Mansfield  EWCA Civ 1056.
If the PP is divorcing, the Deputy should consider the importance of achieving a Clean Break Order as part of the Financial Remedy proceedings, in order to prevent the ex-spouse from returning in the future for more funds, which will be even more important as the PP’S need for care will have naturally increased with age.
A Clean Break will also be of significance where the spouse of the PP has a claim for spousal maintenance i.e. perhaps because they have been financially dependent upon the PP, or have a low working capacity.
In these particular circumstances, consideration should be made by the Deputy as to whether or not any offer in the matrimonial settlement should include capitalised spousal maintenance, which is where maintenance can be paid as a calculated lump sum in order to achieve a full Clean Break, which would clearly be in P’s best interests.
A Court appointed Deputy will not have to apply to the Family Court to be appointed the PP’s Litigation Friend, as usual provision is made for this within the Deputyship Order itself, although this should be checked at the outset of any pending divorce.
The Deputy will however need to apply to the Court of Protection to amend the Deputyship Order, so that it includes a specific power to act within the divorce, to extend to making payments from the PP’s assets if necessary, as a result of any Financial Order made within those proceedings.
The Deputy should also be aware, particularly where the PP is on the borderline of capacity to conduct litigation, that a Consent Order made within divorce can be invalid if one party is found to have lacked the proper mental capacity to have consented to the same.
There is in fact a duty on the solicitor to notify the Court and this was considered in the case of MAP v RAP  EWHC 4784.
Appointed Deputies and Marriage & Cohabitation
If the PP advises you that he has formed a new relationship, or is about to re-marry then this is a happy occasion that will, in many cases be an unexpected but joyful milestone.
If the PP is about to marry, then consideration should be given to any potential matrimonial division in the event of a separation and the Deputy should acknowledge that the starting point for matrimonial division is equality. Consideration should be given as to whether or not a Pre-Nuptial Agreement should be entered into, but this would only be appropriate where the PP has the relevant capacity to enter into such a document and ideally should be supported by medical evidence as to capacity.
Similarly, cohabitation poses the issue of the PP’s partner acquiring a beneficial interest in a property that the PP may own. This can often be a nasty surprise at the point of separation as there are several ways in which the unmarried party can acquire an interest in a property which they do not legally own.
Consideration here should be given as to whether or not the PP and their partner should enter a Cohabitation Agreement, to include a clause for the avoidance of all doubt that they will not acquire any such interest in the property irrespective of any funds that they may put in, or of the fact they reside therein.
None of the above however, overrides the fact that if the PP has children nothing can oust his or her duty to provide child maintenance for them if they do not reside together. The Deputy should be aware that there is nothing that can legally be put into place to remove the PP’s financial obligation towards any child.
The Deputy should also be aware that as well as child maintenance under the Child Support Act 1991, there is also a possibility that the non-resident primary carer of any of the PP’s children is able to make a claim under Schedule 1 of the Children Act 1989. which could include provision for capital to be paid from the PP’s funds.
Appointed Deputies and Children – Contact
If the PP has children, the Deputy needs to think about any particular considerations regarding his contact with them, or indeed, whether the residence of the children may be an issue.
The focus of the Children Act will always centre on what is in the child’s best interests (as opposed to the PP’s right to have a continuing relationship with any child) and if it is deemed to be in the child’s best interest to continue a relationship with the PP, then that should be considered.
The Deputy will need to think about particular arrangements such as the implications for contact and/or residence in the instance that the PP has a carer.
On its own, this would not preclude the PP from having contact with their child, but evidence may need to be presented before the Family Court as to what quality of relationship the child would gain from seeing or residing with the PP.
What if the PP is a child?
The Deputy will be aware that there is some overlap between the jurisdiction of the Family Court and the Court of Protection, in relation to decisions that can be made for a child.
For example, if there is any dispute as to where the child should live or perhaps with which parent, then the Court of Protection could have jurisdiction if the PP lacks capacity to decide where he should live, (not withstanding that he is a child). Equally, the Family Court has the ability to make this type of Order as well.
The Deputy should consider if at any time, proceedings should be transferred to a Family Court on any specific issues as the focus of each Court is entirely different.
In the Family Court all proceedings will focus upon what would be in the PP’s best interests and will follow the principles of the Children Act 1989; in particular the Welfare Checklist at Schedule 1.
The Family Court will consider mediation between parents if needed, as a necessary step towards resolution. The Court of Protection will not, and any decision made within that Court will be based on the principles of the Mental Capacity Act 2005 and the Code of Practice. It will also focus on the PP’s best interests, but not in the same terms as the Welfare Principle.
Both Courts have the power to order that the PP is represented by a Guardian ad Litem or the Official Solicitor if it is considered that the PP’s best interests are independently represented. The Deputy will need to be aware of this.
What if the PP’s parents are divorcing?
Quite often the Deputy will form relationships with and will be reliant upon the PP’s parents, with whom he will have close contact, in order to fulfil his duties under the Deputyship Order.
So what happens if the PP’s parents are now divorcing, or separating and what implications does this pose for the Deputy?
Firstly, consideration will need to be given to any potential conflicts of interest, particularly if the Professional Deputy intends to pass the “lead” parent on to their Family Department for advice. This would not be appropriate for many reasons.
The Deputy should also give consideration as to the PP’s assets and forethought should be given where a property is being purchased for their benefit. Particular care should be taken in drafting the Trust Deed to ensure that each party’s share is accurately specified.
If the PP is an adult and one of his parents has a financial interest in the property, he (as a non-minor) could be outside of the Court’s remit to consider his capital needs and it will therefore not be impossible for the Family Court to make an Order that the home be sold and proceeds divided.
The Deputy should also consider whether it would still be appropriate for the PP’s parents to remain as his Deputies (if that is the case) and will have to deal with this via the Court of Protection accordingly.
Appointed Deputies and Harassment
Where the PP has sustained a brain injury, this may have had an impact on their behaviour and sometimes this can make certain reactions amplified, where usually they would not be.
If you as the Deputy are served with papers under the Family Law Act 1996 or even under the Protection from Harassment Act 1997, then you will need in the first instance to consider your client’s capacity to such conduct such litigation in the first place.
If the client has capacity then they may be able to deal with the matter themselves and instruct appropriate legal representation (or the Deputy will need to instruct). Alternatively, the Deputy will need to be formally recognised as the PP’s Litigation Friend.
Bear in mind in these cases that the Deputyship Order may need to be amended for appropriate permission in this regard.
If the PP, your client, is the subject of harassment then the Deputy will need to consider whether or not they would benefit from protection under the above remedies and will need to make an application on his behalf.
What if you are not a Professional Deputy but assist a Lay Deputy?
Your professional obligations will slightly shift here, as you will be looking to preserve the Deputy’s best interests in their role of looking after the PP’s best interests. This can be particularly important when considering some of the above related Family Law issues and if litigation commences surrounding the PP himself, there may be scope for the Official Solicitor to be appointed by the Court of Protection to act on his behalf.
This is due to the fact that the Litigation Friend must have no conflict of interest with the Protected Party and if that Litigation Friend happens to be a parent or other related family member, e.g. where litigation concerns a property upon which they all may have an interest, or, if the PP happens to be the spouse of the Deputy, their continued appointment will be difficult.
In these circumstances, the Official Solicitor will need an Order of the Court of Protection to assist in any family proceedings and you as the person representing the Deputy will need to consider this.