A claim for costs that have been incurred during the Protected Party’s life time which are to be paid or charged to the estate, is to be made within 6 years of the date of the Protected Party’s death as per the Court of Protection Rules 2017, (Rule 19.11).
The Deputy is granted authority to try and agree the costs with the personal representatives as stated in Practice Direction 24B (P.10). This includes the costs incurred for the Deputyship general management period and the wind up of the Deputyship. This would be the most cost and time effective option, as it would avoid having to pay the court fee for assessment and would conclude the matter quicker, particularly given the current Senior Courts Costs Office (SCCO) turnaround time.
For the avoidance of doubt, a personal representative is someone who is entitled to conclude the affairs of someone who has died, for example, the Executor of the Estate.
Where the Deputy’s costs cannot be agreed, a Bill of Costs will be submitted for assessment. Costs up to the date of the Protected Party’s death are covered by the existing Deputyship Order – the costs incurred following the Protected Party’s death may also be assessed under the existing Deputyship Order.
The SCCO allow subsequent work conducted following this date to conclude the Deputyship, up to the value of £1,500.00 (plus VAT) without obtaining further authority from the Court for these costs to be assessed. These costs will be assessed on the usual basis, taking into account the reasonableness, necessity and proportionality. If the costs incurred post death are higher than £1,500.00 (plus VAT), then the Deputy would need to apply to the Court of Protection to seek further authority for these costs to be assessed.
Clause 27.16 of the Senior Courts Costs Guide (2023) concludes that if the Protected Party dies when the assessment of costs are pending, then the Professional Deputy should inform the SCCO, which will suspend the assessment until after the Court of Protection gives final direction.
It is important to note that it is the Professional Deputy’s responsibility to apply for that direction, and not a duty carried out by the SCCO.
Further SCCO guidance advises that in order to save time and expense for the Deputy, a letter or email from the Court of Protection will be sufficient in the instance where a sealed Order is not accessible.
The Deputy is then required to serve a copy of their Bill of Costs upon the personal representatives upon resumption of the assessment process.
For more information e-mail Georgia Clarke here.