This is probably not something that will affect the majority of deputies who are not acting in a professional capacity, but for those of us who have a family member looked after by a professional deputy this is something you need to be aware of.
The Court of Protection has recently issued a judgment in relation to legal advice and costs where a professional property and affairs deputy asks another member of their professional firm to provide advice. The Court was specifically asked to consider in what circumstances a professional can recover legal advice costs and how they manage conflict if there is a need to take legal advice within their own firm.
A deputy is usually given general authority to deal with the administration of a person's financial affairs. The general nature of the power relates to ordinary tasks required to manage a person's affairs. When you look at obtaining legal advice this is general authority limited to non contentious legal advice for example buying and selling houses.
In the recent case the Court of Protection has decided that litigation is beyond the scope of a deputy and is not within the general power they are given. The legal advice received can cover advice up to but not including anything past issuing letters notifying the other party that litigation will be commenced. If litigation is required permission must be sought from the Court of Protection first. The only two exemptions to this are if matters need to be brought to the attention of the Court of Protection if they relate to the property and affairs of the person being looked after or if the Court needs to make a decision in relation to the welfare of an individual if the care they are receiving is unlawful or when the body which sought have brought the case fails to do so.
If a professional deputy instigates litigation before permission is given by the Court they may not be able to recover their costs.
So how could this affect your family member? Here is an example, the property and affairs deputy can commence proceedings in relation to a continuing healthcare application but cannot begin an appeal against a decision without permission of the Court.
In an attempt to deal with the conflict issue which arises where a deputy instructs another member of his firm to act on his behalf the Court has been quite clear. There are one two ways a deputy can do this. Firstly, the deputy can ask, in the original application for their appointment, for permission to use in house lawyers. It will be down to the facts of the specific situation as to whether this permission will be given. In these circumstances it is more likely the Court will impose restrictions and conditions on any such permission rather than give blanket authority. The second option requires the deputy to do three things, namely to obtain three quotes for the work, make and record a best interest decision as to which lawyers to instruct and then the following rules apply
a. if the deputy selects a different firm, the instructions can proceed, but
b. if the deputy selects the in-house provision, the deputy will need to seek approval from the court if the cost will be more than £2,000 plus VAT, and
c. set out any legal fees in the deputy's return to the Office of the Public Guardian, appending notes of the decision making process
If a deputy acts outside of their power it may be that the decision or resolution involved does not stand or that your family member ends up paying for fees which should never have been incurred in the first place. If your family member is currently involved with litigation instigated by their deputy then it is important to determine whether they have permission to continue or whether a stay needs to be sought to obtain permission.
This case is another example of how finding the right deputy to manage financial affairs is important. As a family member you can ask questions about how the professional deputy will manage or is
managing the affairs of your mother, father, sibling or child. If you have any concerns then you are always able to contact the Court of Protection and raise your concerns directly with them.