Professional deputies have a valuable role to play, says Brian Bacon

As we all know, the spectrum of Court of Protection work is a wide one and covers many different aspects of capacity issues. One area we have concentrated our practice on is in the area of acting as a property and affairs deputy for those who have an acquired a brain injury or suffered a birth trauma.

The question I want to touch on concerns the quandary often faced by families and PI/clinical negligence lawyers: who should be appointed as deputy to manage damages awarded to someone in these circumstances?

Close to home

We address this question when giving expert evidence as to the costs of having a professional deputy in place and it is an extremely important one. Senior Judge Lush considered the issues in a recent newsletter for the British Association of Brain Injury Case Managers (BABICM). He explains that the court traditionally preferred to appoint relatives instead of strangers, where possible.

The arguments put forward might include the fact that the family will know P, will be aware of past wishes and feelings, are on hand to meet P’s needs quickly and to encourage P to participate as fully as possible in the decision-making process. The issue of cost is also raised; a professional will charge for their services, but a family member cannot.

However, despite these good points there has been a shift in approach over the last 15 years or so. It is now appreciated that there are clear benefits why, in cases where someone has an acquired brain injury or suffered a birth trauma, a professional should be preferred over a family member. These reasons include:

• The value of the award. The task of acting as deputy is a daunting and onerous one for many relatives. This can be particularly so if they do not have experience of dealing with large sums of money (settlements can of course involve some very large figures) or of dealing with a lot of paperwork.

• Carer burden. The family will have already been through a traumatic time since the accident or birth; their lives have been turned upside down and they are often involved, to differing degrees, in caring for P. This burden often increases over time, as the person gets older and their care needs become greater. The last thing the family will want is to be involved in dealing with the finances as well.

• Saying no. It can certainly be the case that someone with a brain injury can be extremely demanding and difficult to deal with, making unreasonable demands – we have many! Where this is the case, family members may strive for the quiet life, and will find it very hard to say no to their requests, even if it is clear what is required to make a decision that is in their best interests. It is easier for someone removed from the day-to-day situation to say no.