Mental capacity, deputyships and brain injury

By Features deskPublished On: 19 June 2023

Lorna Halfpenny-Beeby is a Partner at JE Bennett Law, having been with the firm for ten years. She previously worked in both a transitional living unit and community setting with those with an acquired brain injury before taking the current role in the professional deputyship team. Her experience therefore serves her well to understand the complexities of ABI.

Jemma Cahan is a Partner at JE Bennett Law who works almost exclusively with brain injured clients after spending a number of years working as a clinical negligence solicitor.

In this article, Lorna and Jemma give some useful advice to help manage the relationship with a professional deputy and tips on what to do if that relationship breaks down

Why do brain injured clients need a professional deputy?

The Court of Protection issues deputyships to protect those who have lost the ability to manage their own affairs. Brain injuries can have different effects but can mean that the person loses the capacity to manage their own affairs. To have capacity a person must be able to understand, retain and weigh-up information about a particular decision and communicate their decision. Capacity is both issue and time specific. The Mental Capacity Act 2005 governs the kind of decisions that can be made on a person’s behalf. There are two different types of deputyships; one dealing with a person’s health and welfare; the other their property and financial affairs.

What to expect from a deputy relationship

Whilst a member of the person’s family or a close family friend, can apply to become a lay deputy, a professional deputy is often preferred when someone has an acquired brain injury because of their expertise. If there is a claim for damages, which can often be significant, this can lead to complex financial matters needing to be managed. Any ongoing brain injury compensation claim will take into consideration the cost of appointing a Professional Deputy. The deputy may be responsible for anything from managing payment of regular bills, purchase of specifically adapted property, employment of support workers, liaisons with benefit agencies regarding entitlement and portfolio discussions with investment managers.

Why might a client’s relationship with a deputy break down?

Relationships can often break down following settlement of the PI claim. The client may see this as time for a new start and may be reluctant for ongoing professional assistance in management of their financial affairs. Having been pre-occupied by the claim, the client may not have had the opportunity to build a rapport with the deputy. This is essential to ensure that decisions are taken in the client’s best interests. Insight into ongoing cognitive issues and an appreciation of the need to promote longevity of funds over a client’s lifetime, can often put a strain on the client/deputy relationship.

An experienced deputy will support the client with being independent wherever possible and will aim to build a good working relationship with their client. In some instances, if it’s appropriate, they will look for alternatives such as discharge from the Court of Protection and instead look at appointment of a professional Trustee, if there is evidence that the client may have regained capacity, which can happen in some situations.

Tips on how to improve the relationship with the deputy from the client’s perspective

The relationship between the deputy, the client and family will sometimes encounter difficulties. If you are struggling to communicate with your deputy the following tips might help:

Ask for a face-to-face meeting. Phone and video calls can be more difficult if you have a brain injury and a face-to-face meeting is a good opportunity to have a really thorough discussion about the issues
If you feel you are not being involved in the decision making, then ask the deputy to be more involved – often it’s miscommunication rather than a deputy deliberately withholding information
If you want to know how your funds are being managed, then ask to attend the annual financial review meeting. Some clients will have no interest in attending this meeting, but clients are entitled to be involved in the discussions if they want to
If there is a specific decision that you are unhappy about then ask the deputy if they can explain why that decision was made so you can understand their reasoning.

What to do when the client’s relationship with the deputy has irreversibly broken down

In some cases, the client may feel that there is no way they can work with the deputy anymore. In those situations, it is possible to make an application to replace the deputy. The court can appoint a new deputy if:

they are satisfied that the relationship between the client and the deputy has broken down
that it would be in the client’s best interests for a new deputy to be appointed
the new deputy proposed is a suitable replacement.

What makes JE Bennett Law stand out in the marketplace?

JE Bennett Law is relatively unique in being a specialist law firm that dedicates itself to Court of Protection matters and other legal services supporting vulnerable clients. The firm acts for those who, due to events in their lives/personal trauma, are limited in their ability to manage their own financial and health/care needs. The team also advises their family members, who are often going through an extremely stressful time as a result of trying to fight for their loved one’s rights. This requires considerable expertise, empathy and commitment to what is a growing and ever more complex practice area.

JE Bennett Law has well in excess of 200 professional deputyship clients. It also has two (of only around 60 appointed nationwide) Office of the Public Guardian Panel Deputies. The firm and a number of its individual lawyers are ranked in The Legal 500 for Court of Protection, Managing Partner Jane Bennett is also ranked in Chambers. The firm has LEXCEL Accreditation.

If you would like to discuss any of these issues further, please contact Lorna Halfpenny-Beeby or Jemma Cahan at JE Bennett Law.