FREE CHAPTER from ‘An Introduction to Health and Welfare Disputes involving High Net Worth Individuals’ by Ian Brownhill

19/06/2025

CHAPTER TWO – THE DECISION-MAKING AUTHORITY OF A PROPERTY AND AFFAIRS DEPUTY

Introduction

This book does not address the decision-making authority of a deputy for health and welfare matters. Through practice, and following the decision in Re Lawson, Mottram and Hopton (appointment of personal welfare deputies)[1], they remain relatively rare.

More common are property and affairs deputies who are managing the estates of high net worth individuals. The identities of the property and affairs deputy will vary, some are professionals, others are professionals who take the work through a panel operated by the Office of the Public Guardian and some will be family members or friends of the person who lacks the mental capacity to make decisions as to their property and affairs.

The scope of a deputy’s decision-making authority remains something which is misunderstood. Professional deputies, especially those managing large personal injury awards, are increasingly being brought into health and welfare cases before the Court of Protection. This chapter looks at the scope of a property and affairs deputy’s decision-making ability.

 

The basic concept of a deputy

Whilst lasting powers of attorney are often featured in the media, deputies get less attention. Sometimes, social and healthcare professionals working with an individual will use the terms “attorney” and “deputy” interchangeably, this is incorrect.

The most recent media focus on deputyships, and how they operate in England and Wales. actually arose from a case involving a high net worth individual overseas. In 2021, the #FreeBritney campaign came to an end as the Superior Court of California brought to an end the conservatorship in relation to pop star, Britney Spears. Whilst the Californian concept of conservatorship is different to deputyship in England and Wales, a worldwide discussion was started.

The elementary equation in respect of deputyship is as follows:

  • A person lacks the mental capacity to make a decision, or a number of decisions;
  • The court determines that it is in the person’s best interests to appoint a deputy to make the decision(s);
  • The court makes an order appointing a deputy and gives them such powers or duties as necessary;
  • The deputy then makes the decision(s) in P’s best interests.

The important core aspects are therefore:

  • What decisions has the person been assessed as not being able to make in accordance with sections 2 and 3 of the Mental Capacity Act 2005?
  • Which decisions (if any) has the court made on the person’s behalf and which are to be made by the deputy in accordance with section 16(2) of the Mental Capacity Act 2005?
  • What additional powers or duties are included within the court’s order as per section 16(5) of the Mental Capacity Act 2005?

Section 18 of the Mental Capacity Act 2005 gives specific examples of the types of property and affairs decisions which may be made under section 16 (and as a corollary by a property and affairs deputy).

Section 19 of the Mental Capacity Act 2005 specifies who may become a deputy and provides more detail as to their appointment. Section 20 of the Mental Capacity Act 2005 sets out the restrictions in respect of the scope of a deputy’s decision-making authority.

Paragraph 8.54 of the Mental Capacity Act 2005 Code of Practice reminds deputies that they must only make decisions which the court has empowered them to make.

Despite the foregoing, the court has had cause to examine the issue in detail.


ACC & Ors and cases which have followed

In 2020, the Senior Judge of the Court of Protection, Her Honour Judge Hilder, delivered her decision in ACC & Ors (property and affairs deputy; recovering assets costs for legal proceedings)[2]. That was a decision in respect of three joined cases, the primary issue being whether, and in what circumstances, a property and affairs deputy can recover from the protected person’s assets costs which have been, or are likely to be, incurred in legal proceedings.

The court outlined that the standard deputyship order, which the court generally will make, gives a ‘general’ authority to manage P’s property and affairs. The court was clear that this authority only encompasses those tasks which are required to administer P’s estate efficiently.

With regard to obtaining legal advice, the court held that the authority conferred by ‘general’ authority is limited. That limitation is to non-contentious legal tasks, including obtaining legal advice, as are ancillary to giving effect to the general authority.

However, it is apparent from both the judgment and wider practice, that it was known that property and affairs deputies had proceeded on the basis that their general authority entitled them to litigate on P’s behalf. The court held that this was not so; if a property and affairs deputy seeks to embark on litigation, they must first seek specific authority from the Court of Protection. This is subject to exceptions.

A property and affairs deputy can bring Court of Protection proceedings in respect of a property and affairs issue without prior authority of the court.[3]

And, a property and affairs deputy could and should bring Court of Protection proceedings in respect of health and welfare matters without prior authority of the court, if[4]:

having been properly alerted by the property and affairs deputy, the appropriate body or institution drags its heels in referring a non-property-and-affairs issue to court, the deputy may – without specific authority to do so – appropriately make an application to draw this to the attention of the court and seek further directions. Moreover, the deputy should do so.

However, the court was helpfully direct as to the scope of a property and affairs deputy’s role[5]:

a property and affairs deputyship does not confer any authority in respect of welfare. If a welfare issue arises, there may be a body or institution more appropriately placed than the property and affairs deputy to make that application, at less cost to P.

The distinction between property and affairs decisions and those which relate to health and welfare is not always clear. This is something to which Her Honour Judge Hilder referred[6] in her judgment.

The decision in ACC was something to which the court returned in PSG Trust Corporation Ltd v CK & Anor.[7] In that case, Mr Justice Hayden had to determine the issue of whether to inform P of the value of their civil litigation settlement. During the course of his judgment, Hayden J returned to the divide between a property and affairs decision and health and welfare. He stated, speaking of ACC[8]:

What is in issue is communication of the exact sum of a damages award. That strikes me as a property and affairs matter. The fact that welfare considerations flow from it does not change the nature of the matter. Many financial issues have welfare implications, taking out mortgages, finance agreements, sustaining an extensive overdraft. This view seems to me to be entirely consistent with Judge Hilder’s observations, indeed, she uses the term “in the realm of property and affairs” which implicitly recognises that decisions in that sphere will sometimes have welfare implications. I do not believe, therefore, that it is necessary to extend a deputy’s authority in every case. Neither, however, do I wish to be prescriptive. Precisely because the Court of Protection is such a highly fact-specific jurisdiction, it is perfectly conceivable that what might appear on the surface to be a Property and Affairs issue, is on a proper construction, nothing of the kind and truly a welfare issue. In these cases, an application can be made and a deputy’s authority extended where appropriate.

Most recently, the Senior Judge returned to the authority of a property and affairs deputy in Lumb v NHS Humber and North Yorkshire ICB & Anor[9]. In that case the focus was upon what involvement a property and affairs deputy can/should have in the management of a Personal Health Budget under the National Health Service (Direct Payments) Regulations 2013.

Ultimately, HHJ Hilder Senior Judge Hilder answered the question of whether the management of direct payments comes within the standard authorisations of a deputyship appointment; or, if it does not, whether such authorisation might be specifically granted. HHJ Hilder concluded that ‘representative’ for the purposes of Personal Health Budget direct payments has to[10]:

be able to ‘plan’ care arrangements – as in ‘devise’ them, not simply make administrative arrangements to pay for them. Such ‘planning’ of care arrangements is not within the standard authorisations of a property and affairs deputy

For completeness, HHJ Hilder concluded[11] that a case manager could be appointed as a ‘representative’ in this regard.

Specific practice points in respect of high net worth individuals

Case managers

The role of case manager does not appear in the Mental Capacity Act 2005. Case managers often feature in cases where a person has been awarded damages as part of a personal injury or clinical negligence claim. Case managers will sometimes feature in the privately funded care and support arrangements of older individuals, or in complex care packages commissioned by statutory bodies.

The role of the case manager and how they operate in litigation is a matter for another book. However, in brief, the case manager will work with the lawyers bringing a damages claim (if there is one) and other health and social care professionals. The role of a case manager is facilitative, they will help co-ordinate the multi-disciplinary team to ensure the needs of the client, and their family, are being met.

The case manager’s role is not as a surrogate social worker in respect of a privately funded package of care. The case manager does not have any decision-making authority beyond the person who is instructing them. A case manager who is instructed by a property and affairs deputy does not have health and welfare decision-making authority that the deputy does not possess.

Equally, case managers cannot be expected to assume the role of statutory services, especially in respect of safeguarding adults. However, the appointment of a case manager is sometimes used as a means of avoiding, or reducing, conflict in respect of privately funded care packages for high net worth individuals. The idea being that the case manager will provide an independent view as to the arrangements and act as a conduit. It follows that sometimes a case manager will provide witness evidence in health and welfare proceedings before the Court of Protection.

Deputies being made parties in health and welfare proceedings

Property and affairs deputies are not automatically made parties in health and welfare proceedings. However, there is increasingly a trend for them to be joined to those proceedings, especially in cases involving high net worth individuals.

High net worth individuals will often fall outside of the financial eligibility criteria for state funded care. In those cases, the property and affairs deputy will often be the individual who is able to identify alternative options for where a person lives, or what care they receive. This is squarely in the remit of a deputy for property and affairs, applying the decision in ACC. However, it does not follow that the deputy for property and affairs needs to be a party to proceedings. Indeed, there are costs implications for P which have to be justified. The deputy can be provided with documents, as can the Public Guardian using the various provision in Part 5 of the Court of Protection Rules 2017. Part 9 of the Court of Protection Rules 2017 deals with party status, there is no automatic requirement for a deputy for property and affairs to become a party in health and welfare proceedings even if they are responsible for commissioning alternative options for P’s residence and care.

Property and affairs deputies are called upon to provide evidence in health and welfare cases which have safeguarding elements.

Consultation

Whilst a property and affairs deputy may not be the decision maker in respect of a particular decision which P is unable to make with regard to their health and welfare, the deputy may still be someone to be consulted.

Often professional deputies may have had long term involvement with P and their family, especially in cases where there is significant family wealth, or the deputy has been involved over the lifetime of a claim. The fact that the deputy is appointed for property and affairs does not prevent their consultation in respect of health and welfare matters.

In respect of attorneys, the Mental Capacity Act 2005 Code of Practice suggests[12] that it is, ‘good practice’ to consult an attorney even if it’s not an area in which decision making has been granted to them. The same must be true for deputies, it is arguably good practice to consult a property and affairs deputy about a health and welfare decision. Section 4(7)(d) of the Mental Capacity Act 2005 requires such consultation if it is practicable and appropriate.

 

Deprivation of liberty

Many high net worth individuals have extensive care and support packages in their own home, or other community settings which amount to a deprivation of their liberty. Many of these care and support packages go without the scrutiny of public bodies and some are not authorised by the Court of Protection. This is addressed in Chapter Six.

Where a property and affairs deputy is commissioning care arrangements for a person which satisfy the ‘acid test,’ to which the person cannot consent, then often it will be necessary to secure authorisation for the deprivation of liberty which arises. In such a case, the deputy will alert the local authority with safeguarding responsibilities for the person to make enquiries and, ultimately, an application to the Court of Protection if necessary: SSJ v Staffordshire County Council[13].

Summary

  • A property and affairs deputy does not have the authority to make decisions as to health and welfare matters;
  • It is good practice to consult with a property and affairs deputy about a health and welfare matter if it is reasonable and practicable to do so;
  • Property and affairs deputies may bring litigation on behalf of P subject to the decision in ACC. Property and affairs deputies do not have the general power to litigate on behalf of P;
  • Case managers do not have powers to make decisions beyond those of the person instructing them.

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[1]   [2019] EWCOP 22

[2]   [2020] EWCOP 9 (27 February 2020)

[3]   Paragraph 52.4 of ACC

[4]   Paragraph 52.10 of ACC

[5]   Paragraph 52.5 of ACC

[6]   Paragraph 52.6 of ACC

[7]   [2024] EWCOP 14

[8]   Paragraph 31 of TSG

[9]   [2024] EWCOP 57 (T2)

[10]  Paragraph 69 of Lumb

[11]  Paragraph 107(e) of Lumb.

[12]  Paragraph 7.57

[13]  [2016] EWCA Civ 1317