Barder: Exceptional and rare
Whilst managing the property and affairs of another person a Deputy appointed by the Court of Protection may come across issues that require them to pay for legal advice and assistance on their behalf. Examples could include purchasing a property, challenging a care plan or obtaining advice about a dispute.
In February 2020, the Senior Judge of the Court of Protection published a judgment whereby she specifically described the circumstances where a Deputy does and does not have authority to take action on behalf of another. The case also considered the circumstances in which a firm would be able to instruct their own firm, as this could be considered to be a conflict of interest. The Office of the Public Guardian has recently published guidance for Deputies dealing with the issues arising from this judgment and has said that Deputies must be compliant with the conclusions of the case by 1st April 2021.
Helpfully, further guidance has been produced by a group of practitioners from the Law Society, Solicitors for the Elderly, the Court of Protection Practitioners Association, STEP and the Professional Deputies Forum. They have also produced a helpful flowchart to assist practitioners when navigating these new requirements for deputies. These can be found here.
The case of ACC concluded that deputies must now apply for authority from the Court of Protection to incur fees in certain legal matters. Professional Deputies will also need to apply for authority to instruct their own firm or if they are concerned that the anticipated fees that they will incur in a matter in which they are authorised to take action will be high. The OPG has expanded on this and has said that all Deputies are expected to apply to the Court for authorisation in any cases where projected legal costs exceed £2,000 plus VAT.
As a general rule, a Deputy will need to apply for authority to conduct any litigation on behalf of a protected party, except where the contemplated litigation relates to Property and Affairs and will be heard in the Court of Protection. Deputies are permitted to obtain legal advice on a case that would be considered to be “contentious litigation” but the work involved must be no more than issuing a letter of claim and considering a response. Some examples of non-contentious legal tasks where fees can be incurred include:
Even if a third party acts on behalf of a protected party in such litigation; the Deputy must not reimburse or fund the litigation without authority from the Court of Protection.
When applying for authority from the Court of Protection a Deputy must, if practicable, obtain 3 quotes of estimated fees for the work and complete a best interests decision form.
Deputies cannot incur fees obtaining advice in health and welfare Court of Protection matters, unless they have authority to do so in their Order of appointment or they are seeking a direction in respect of a welfare issue. An example of where they may wish to seek directions would be where they are concerned that their client is subject to a Deprivation of Liberty (DOL) in a community setting and the responsible authority has not obtained the necessary approval from the Court by making what is known as a “Re X” application.
A Deputy can obtain advice about eligibility for NHS Continuing Healthcare Funding but, as with contentious litigation, they cannot take action without authority from the Court beyond submitting a letter of appeal and receiving a response. The judgment does not make clear whether this applies to funding under the Care Act 2014 as well, but given the similarities to NHS funding it would be reasonable to assume that it does.
Her Honour Judge Hilder was very clear that seeking any advice in respect of an Education, Health and Social Care Plan is not within the general authority of a property and affairs Deputy and that they must seek permission from the Court to take advice in such matters.
A Professional Deputy may not necessarily need to apply to the Court for permission to instruct their own firm. If the matter is not litigious and the fees to be incurred will be below £2,000 an application will not be necessary. However, a Professional Deputy should obtain three quotes from firms with the appropriate specialism, including their own firm, and make a best interests decision to instruct their own firm. If obtaining three quotes is likely to cost more than the proposed work then it would not be considered proportionate for them to seek such quotes. If the fees are likely to exceed £2,000 a Deputy should seek authority from the Court of Protection by making an application. As above, the evidence required will include 3 quotes and a best interests form.
If authority has not been obtained but urgent action is required, for example, due to a Court deadline a Deputy can proceed. However, they must exercise caution because they will need to make a retrospective application for authority to recover the costs incurred and there is no guarantee that such an application will be granted.
Deputies should familiarise themselves with the case, the OPG Guidance and consider whether they have any cases in which they should apply to the Court of Protection for authority.
If you are concerned about your authority to take legal proceedings as a Deputy or you have concerns that your Deputy is acting without authority, we would suggest taking advice from a Court of Protection specialist.
Jemma Garside is a Senior Associate in the Private Client team specialising in Court of Protection work. She joined Kingsley Napley in January 2021. Jemma’s practice involves supporting professional and lay deputies for individuals who do not have capacity to manage their property and financial affairs. This includes assisting them with complex applications to the Court of Protection for approval to purchase properties, statutory wills and making gifts.
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