The Overseas Court of Protection Deputy

Should someone living abroad be allowed to be a deputy for a person who lives in the UK?

Traditionally the answer was no, as the Court felt uncomfortable supervising someone outside the jurisdiction. There has since been a long debate on when this is appropriate and in short, it now really depends on the individual case.  

The recent case of DGP Law v DGHP & others (2005) EW COP58 highlights this.

This case concerned an elderly lady, P, who suffered from dementia. P’s daughter who lived in America applied to be appointed as P’s deputy. Objections were raised by family members on the basis that the court should not appoint anyone who lived outside the jurisdiction of the court.

P had indicated through the manager of the care home that she wished her daughter to act as her property and affairs deputy.

It was noted that the daughter had a good working relationship with the carers and played an active role with P’s care, notwithstanding the fact she lived abroad.

Upon hearing the application, Senior Judge Lush dismissed the objections and appointed P’s daughter as her property and affairs deputy. In giving judgment, SJ Lush held:

“In my judgment, the fact that someone lives outside a 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”.

To some extent, this is a test case as it is the first post-Mental Capacity Act case that has considered the appointment of deputies who are resident outside the jurisdiction. It does mark a departure from previous case law which commonly held that those persons outside the jurisdiction should not be appointed as deputy.

No longer is distance alone is an absolute bar to the appointment of a deputy. With the use of modern IT facilities etc., distance really does not preclude a person being appointed as deputy providing the person if the best suited for the role. Residing overseas remains however a difficult hurdle to overcome and any person wishing to apply should make sure their application is carefully prepared.