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Published On: July 11, 2016 | Blog | 0 comments

Challenging a deputyship order on the basis of capacity

A deputyship order removes fundamental human rights of the person to whom it applies.  If that person does have the capacity the Court’s order is a fundamental injustice.  However overturning an order can be complicated and involved.

We recently acted for the partner of a lady, who the local authority took to the court to get a deputyship order.  This was on the basis of a Social Worker’s opinion. The lady concerned was housebound and although the application was served on the lady, she did not seek legal advice at the time. An order was made when she did not attend Court.

Subsequently, her partner instructed us and we challenged the deputyship order.  We obtained medical evidence confirming that she did have the capacity and made an application to the court for the order to be reconsidered.  After a hearing the judge ordered an independent doctor visit her to make a report. This confirmed that the lady did have the capacity.  The court, therefore, overturned the order.

Before we won back her freedoms, the court appointed deputy had intervened in the family’s affairs and had made numerous enquiries of banks, etc.  The whole matter was most distressing for the family.

Upon successfully overturning the order the court considered the usual rules on the recovery of legal costs.  This is that the deputy’s costs, the social services costs and the costs of the successful application to overturn the deputyship should all be paid from the lady’s funds. In practice, it is very difficult to overturn that normal rule on costs unless you have clear evidence of wrongdoing.  We were successful, in that the Social Services costs were not ordered to be paid. However the deputy who was doing as the Court asked, had to be paid.

The family is now considering a separate action to recover those costs from the Local Authority.

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*

David Wedgwood

Head of Civil Litigation Joint Head of Court of Protection

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