Challenging a Local Authority Acting as Deputy

What can you do if you disagree with the actions of a local authority acting as Deputy for a vulnerable adult?

It’s not unusual for the Court of Protection to appoint a local authority as Deputy for a mentally incapacitated person. I covered this point in an earlier blog (Read more).

What Are the duties of a Local Authority acting as Deputy?
A local authority Deputy has the same obligations as any other Deputy appointed by the Court of Protection.

All Deputies must have regard to the Mental Capacity Act 2005 Code of Practice and act in the best interests of the incapacitated person. But what if the LA Deputy makes decisions that are more in the best interests of the local authority than of the individual whose finances they are managing?

For example, if a local authority acting as Deputy has disposed of an asset to use the proceeds to pay for the incapacitated person’s care and the person’s family think the asset should not have been used for that purpose or that it should have been disregarded under Care Act 2014 regulations?

This is a question that arises sometimes, particularly with regard to bonds and similar investments that have a life assurance element to them. Sometimes a local authority alleges there was a deliberate deprivation of assets when the investment was taken out and therefore it should not be disregarded.

It’s easy to see how a conflict of interests might arise when a local authority acting as Deputy is making financial decisions for someone in care.

How to Challenge a Deputy’s Actions
If the local authority’s action is to be challenged, the action needed will largely depend on when the alleged misuse of the asset is discovered and the strength of the evidence to support the claim.

Sometimes the local authority’s actions are only discovered after the incapacitated person has died. It then becomes the responsibility of the personal representatives to pursue the local authority for compensation.

If the local authority’s actions are discovered whilst it is still acting as deputy then it is the Court of Protection that has the authority to investigate the issue. Anyone who is aware of a possible misuse of powers by a Deputy can notify the Office of the Public Guardian (OPG) and they will carry out an investigation into the alleged abuse.

If the OPG concludes there is sufficient evidence the matter will be referred to the Court of Protection for consideration. The court can make an order to suspend, discharge or replace a Deputy.

Points to note 

Many families don’t raise their concerns when a local authority acting as Deputy seems to be the cause of the problem because they think a complaint won’t do any good.  If you disagree with a local authority’s actions you should question the basis for their decisions – ask for evidence that they have followed the Mental Capacity Act Code of Practice.

As financial restrictions continue to bite on local authorities it is likely that LA Deputies will interpret the rules more restrictively and use assets to pay for care fees that would otherwise have been disregarded. If a local authority is acting as a Deputy they must act in the best interests of the incapacitated person first and foremost.