As reported in the Law Gazette, last week the Court of Protection (CoP) ruled on guidance to those acting as deputies on behalf of incapacitated clients, informing them they should seek permission before beginning litigation.
The ruling came after the CoP heard three cases where proceedings had been issued, and costs incurred without the client giving the deputy permission to begin the proceedings.
Her Honour Judge Hilder, presiding over the cases, set out clear guidelines for deputies to follow prior to beginning the litigation process.
These steps included:
- Welfare proceedings – Deputies required to bring the need for welfare proceeding to the attention of the court. If this is being delayed by the local authority or another institution, the deputy should raise this during the court process
- Non-contentious work – Deputies are advised to check they have authority to act on the advice given. If not, then don’t seek it. Deputies are also required to use the ‘best interests’ decision-making process to consider whether the costs of the advice or work is proportionate. If it isn’t then don’t proceed
- Conflict issues – Deputies need to request specific authority from their client to instruct a firm who then seek advice and carry out tasks. If no authority is given, the deputy must obtain three quotes from various firms, and document their reasoning for choosing one of the firms to carry out the work, and clearly set out any legal fees in their account to the Public Guardian
HHJ Hilder added:
“Nothing in this decision should encourage property and affairs deputies to consider that there will on other occasions be a similarly positive determination of applications effectively to authorise litigation after the event. Conducting litigation on behalf of [a client] is a significant step, likely to incur significant costs. Appropriate authorisation should be secured in advance.”
