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?
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:
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P’s spouse or partner
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any other relative who takes a personal interest in P’s affairs
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a close friend
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a professional adviser such as a family solicitor or accountant
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a local authority’s Social Services Department, and
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a panel deputy, as deputy
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