Professional deputy avoids personal liability

Professional deputies have a challenging role dealing with the property and affairs of a person who lacks capacity.  The deputy must act and make decisions in the person’s best interests.  Sometimes determining what course of action represents their best interests can be tricky.

A recent court decision highlights these difficulties.  A professional deputy sought court authority to apply for approximately £17,000 a year from a child’s funds towards payment of her younger brother’s school fees.  The Official Solicitor was involved and strenuously resisted the application.

The court concluded the gifts, past, present and future should be authorised, no doubt a relief for the deputy involved who was potentially faced with personal liability to repay £50,000+ spent on school fees by the time the court dealt with the case.

The court reached this decision based on multiple factors and expressly warned that it was tailored to this particular case and set of circumstances and should not be viewed as an authoritative approval for paying school fees in other cases.

Factors in favour of allowing the payments

The amount of fees represented less than 3% of the sister’s assets and could be funded out of income. The fees were also payable on a term basis so could be reviewed regularly by the deputy.
Providing the brother has a good education and does well in life, he is likely to be of more useful support to his sister in the future rather than feeling that his education had been hampered by her disabilities which could negatively affect their relationship in the future.

The school was close to the family home and has a school bus so the parents need not spend time running the brother to and from school which could otherwise be spent caring for his sister.  Ensuring the brother is happy and thriving in school alleviates stress for the family so the parents can focus their attention and concerns on their daughter.

Factors against the payment

The daughter’s £5m assets represent her clinical negligence claim award and should primarily be used for her own care.  Her needs and circumstances may change in the future and so her assets should be protected so far as possible.