Q&As

In a situation involving joint tenants of the legal estate: husband and wife, and one of the parties loses mental capacity, so that an application to the Court of Protection is required, is there any issue appointing the other spouse as deputy? Alternatively by analogy with the problems of joint owners and powers of attorney is there an issue?

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Produced in partnership with Helen Galley of XXIV Old Buildings
Published on: 17 August 2016
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The identity of a person appointed as a deputy for a person who has lost mental capacity is in the discretion of the Court of Protection. In Re AS, Senior Judge Lush referred to an order of preference when it came to the appointment of a deputy. He did then go on to say that no one had an entitlement to such an appointment. The order of preference was as follows:

  1. P’s spouse or partner

  2. any other relative who takes a personal interest in P’s affairs

  3. a close friend

  4. a professional adviser such as a family solicitor or accountant

  5. a local authority’s Social Services Department, and

  6. a panel deputy, as deputy

Helen Galley
Helen Galley

Helen has built up a reputation as a well-respected commercial Chancery practitioner with an emphasis on property and trusts related issues. She has built up extensive and wide ranging expertise in both non contentious and contentious property matters ranging from small scale cases to multi-million pound developments. Helen has also acted in a wide range of commercial and business disputes in areas as diverse as travel, hire purchase, the media, entertainment, IPR, IT and e-commerce. Contentious and non-contentious trusts matters, both on and offshore, are a regular feature of her caseload. Helen is a member of STEP, ACTAPS, the Property Bar Association, the Chancery Bar Association and IAL as well as an accredited mediator. Helen is recommended as “a first-rate advocate” in Legal 500 2015 for private client (trusts and probate), partnership and professional negligence. She is said to be “consistently able to provide excellent advice in a charming and friendly style” and is “responsive, hugely supportive and extremely user-friendly”.

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Jurisdiction(s):
United Kingdom

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