Legally Appointed Deputies for those with limited capacity: “I Care A Lot”
We examine the premise of the film, and relate it to our own legal provision for people who may have issues around their mental capacity
A fair few people, having a bit of time on their hands in the evenings just now and access to a variety of popular video streaming services, will have run across Rosamund Pike and Peter Dinklage in the film ‘I Care A Lot’. If not, look away now!
Without commenting on the performances of either of the above actors or indeed the script, we examine the premise of the film, and relate it to our own legal provision for people who may have issues around their mental capacity and the safeguards that are in place here to prevent situations like that set out in the film arising.
What is the film about?
Rosamund Pike’s character is a legally appointed ‘guardian’ for people who have lost, or are struggling with, capacity to manage their own property and financial affairs. This position is not dissimilar to our Court of Protection appointed deputies.
The similarity pretty much ends there. We’ve never met a professional deputy who is a) quite as glamorous as Rosamund Pike’s character and b) entirely motivated by greed and self-interest, and seemingly able to manipulate situations without ever being questioned as to her actions.
Her focus is on how much money she can make from her charges. Initially complicit are a doctor and a care home manager, and the judge who rubber stamps her appointment doesn’t appear entirely independent of thought.
These characterisations of course take no account of anyone working alongside any of these ‘professional’ characters’ ability to query, raise concerns about, or whistle-blow in respect of their actions. In order for this situation to come about, a vast conspiracy of silence would be needed.
Could it happen here?
It is highly unlikely, and even if it did, it couldn’t last for long. Deputies appointed by the Court of Protection are supervised by the Office of the Public Guardian, who are an independent government body.
In order to be appointed in the first place, the Court of Protection requires any application to be accompanied by a capacity assessment from an experienced professional – and can insist on further reports if they wish to do so. The person whose capacity is being questioned must be notified (twice) as part of the appointment process, and is given the opportunity to object or be heard. Three other parties must also be notified of the application, again in order that any objections or concerns can be raised.
Once a deputy is appointed by the Court of Protection, the Office of the Public Guardian can (and does) carry out regular supervisory visits and checks on professional and lay deputies alike, and also on attorneys appointed under registered Lasting Powers of Attorney. They are not afraid to take action where action is required either – removal of deputies and Attorneys does happen.
Annual review of finances
Annual accounts must be submitted and any queries on expenditure explained. Concerns over the conduct of deputies or attorneys can be, and are, raised with the Office of the Public Guardian by anyone - family, social workers, doctors, care staff – anyone. Professional Deputies’ conduct can be measured against the Deputy Standards.
In 2019/20 the Office of the Public Guardian carried out 3,099 investigations. This may sound like a lot, however there are now approximately four million Lasting Powers of Attorney and around 65,000 Deputyships registered. So, as a proportion, this remains very low.
Of these 3,099 investigations 30.49% resulted in court action, 16.07% were rectified using alternative measures, and there was no action taken in 53.44% of cases.
In terms of professional deputies’ costs, there are two supervisory mechanisms. A deputy must submit their cost estimate to the Office of the Public Guardian on an annual basis and must (where fixed costs, set out by the court, are not being taken) have their costs assessed by the Senior Courts Costs Office – who go through the file with a fine-tooth comb.
Costs have to be justified and where they cannot be, or estimates are exceeded, recovery of the deputies’ costs may not be authorised.
Deputies and attorneys
It is also important to recognise that there is a distinction drawn between deputies and attorneys appointed to make decisions in respect of property and financial affairs, and those appointed in respect of welfare matters. There is inevitably some cross-over between the two areas. However, Rosamund Pike’s character in the film rides roughshod over this divide and appears to have complete licence to do whatever she wants, to whomever.
Our legal system’s genuine intention is to promote a holistic approach to assisting those with capacity issues, starting with the principles enshrined in the Mental Capacity Act 2005 - which is intended to empower and support each individual.
Does she care a lot? Sure – but only about herself.
Contact our expert Court of Protection solicitors for further guidance on legally appointed deputies.