After someone loses mental capacity, as a result of a brain injury, due to old age or another condition, it may be necessary to appoint a deputy through the Court of Protection to make decisions on their behalf, if there is no valid power of attorney in place.
A deputy can be a family member or close friend, but sometimes a legal expert or solicitor is appointed to manage decisions as a professional deputy.
It can be difficult for people to have a professional deputy in their lives. Whether it's the person who the professional deputy is acting for, or their family and friends, relationships can and do break down. It may be that there's a clash in personalities or that family members don't agree or feel listened to about the decisions being made.
It is important that if someone needs a professional deputy, that this person is right for them and their circumstances. Building close relationships with the whole support network is vital for the relationship to work. Everyone needs to feel comfortable with the professional deputy and feel confident in the decisions they are making.
Can I change Professional Deputy?
The short answer is yes; you can change your professional deputy. People often think this isn't possible because the Court has appointed their deputy, but a professional deputy can be removed and replaced by the Court of Protection. An application will need to be made, and the Court must decide if changing the deputy is in the person’s best interests.
Reasons you might want to change a professional deputy
There are lots of things that could contribute to someone thinking they want to change a professional deputy. Some of the more common reasons include:
- Not getting back to people or communicating decisions fully
- Not building relationships and getting to know the whole family
- Having different people dealing with decisions due to staff leaving or joining
- Making decisions without listening or gathering views from family members
- Making decisions even though the family object without referring it to the Court
Things to do before changing a professional deputy
Before you change a professional deputy, it's important to explore why you want to change. You should speak to the current deputy openly and honestly and see if you can resolve any breakdowns in the relationship. It can be expensive to change a professional deputy, so the best option may be to repair the relationship.
You could also report any concerns you have to the Office of the Public Guardian (OPG), who will be able to explore your concerns and worries for you.
If you are looking at options as a family member because you do not agree with a decision the deputy has made, you should seek advice from another expert who will be able to advise you if the decision was appropriate and in the best interests of the person they are acting for.
How difficult is it to change my Professional Deputy?
When the relationship with a deputy cannot be repaired, the application to transfer to another deputy can be straightforward.
However, if you do wish to change your deputy, it is advisable that the professional you want to change to contacts the current deputy to gain consent that they are happy for the change and won't object to the application. Doing this should avoid any lengthy and drawn-out proceedings at Court, which can be costly.
What is the process of changing a professional deputy?
Once agreement from the current deputy has been explored, an application will then need to be made to the Court of Protection. Whilst this application is being processed, the current deputy will remain in place. If they have made no objection to the change, this application should go through without any problems.
It is sometimes necessary to provide updated evidence that the person lacks capacity when changing a professional deputy, but this will depend on what other previous medical evidence is available. An application form will then be submitted to the Court of Protection, along with supporting information, the new deputy's declaration and a witness statement setting out the reasons for the application and explaining to the Court why it is in the person's best interests for the transfer to be approved.
Timescales for changing a deputy depend on the Court's timetable, but usually, they are completed within 6-12 months.
When there is a proposed change in deputy, the current deputy should be encouraged to provide details of all ongoing matters in response to the application. This will help everyone involved understand what is happening and enable the Court to decide if any decisions need resolving by them and if the change should be granted.
If you wish to discuss professional deputyship or want to know more about changing professional deputy, speak to our expert Court of Protection team today.
David Hilton
