Non-Resident Deputies
The Court of Protection has a wide discretion on whom to appoint as a Property and Affairs Deputy. Close family members are often the preferred choice over a complete stranger unless P’s Estate is complex (there is a dispute), high in value (assets over £500,000) or it might be inappropriate to appoint a family member for fear of undue influence, conflict of interests or financial abuse.
We have acted for many clients habitually resident outside of the UK who wish to be appointed as Property and Affairs Deputy for a relative residing within the UK. Jobs, marriage and travel see people relocate abroad, leaving elderly parents or relatives living alone in the UK.
Geographic location is one factor that will be considered by the Court of Protection when assessing the suitability of a proposed Deputy. We have acted for many non-UK resident Deputies that have been successfully appointed to manage a UK Estate on behalf of P. However, we noticed that the Court sometimes displayed an underlying nervousness in appointing a non-UK resident, in light of the perceived practical complexities that might be encountered with a geographically distant Deputy.
Historically, the Court of Protection has held the view that appointing a non-UK resident as Deputy would be impractical and inconvenient, and we have found that it was only in cases when we could show that the proposed Deputy was frequently in the UK and particularly financially competent (a business person), that their appointment would be considered favourably.
We therefore welcome the recent judgment delivered by Senior Judge Lush in the case of Re: DGP [2015] EWCOP 58 where a USA resident was appointed as Property and Affairs Deputy for her elderly mother residing in a care home in the UK. In this case, P’s daughter, Lori, who was resident in the USA, made an application for a Property and Affairs Deputyship that was contested by P’s two brothers and her niece.
One of the main objecting factors was that Lori would be unable to manage P’s affairs as she was habitually resident outside of the UK. There were some additional arguments put forward with regards to Lori’s competence and management abilities, but those appear to have been discounted. Senior Judge Lush cited a Judgment from the Ontario Court of Justice which stated that “families today have a potential for being more widely spread out geographically” and a strict adherence to the traditional view that a non-resident ought not to be appointed was outdated and would “deny many people the opportunity of managing family affairs”.
Indeed Senior Judge Lush states that the fact that someone lives outside of the jurisdiction “should not be an impediment to their appointment as a deputy, if in all other respects, they are the most suitable candidate to be appointed and their appointment is in P’s best interests”. The Court has recognised that advances in the transportation of people, data and communication means that all sorts of global transactions and interactions can occur seamlessly and immediately. The Court referred specifically to online banking, digital reporting, emails, skype and the increased popularity of budget air travel.
On the specific facts of this case, Lori was shown to be a competent individual, working professionally as a notary and real estate title processor in Maryland. Lori was in regular weekly telephone contact with P. She had a good relationship with the care home and carer’s supporting P’s welfare needs, and Lori visited P at least twice a year for an extended visit which P was reported as enjoying immensely. P’s estate was relatively modest (less than £50,000) and P (having had an awareness of the Court proceedings) had frequently vocalised her wishes that Lori be appointed as her Deputy. Lori was also making regular financial transactions into P’s personal expenses account at the care home to top up her petty cash account for any items that P might need. The insurance company providing the Deputyship bond had no issue in bonding a non-resident deputy. All of these factors would have been considered by the Court when making the decision on whether Lori was a suitable candidate, despite her geographic location.
Many of the lay clients we act for are habitually resident outside of the UK, but wish to support their relatives in the UK by acting as their Deputy. It is useful therefore to have this guidance from the Court of Protection that geographical location will not be a barrier to the appointment of a Property and Affairs Deputy, as long as the candidate is, in all other regards, the most suitable one.
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