In the case of ACC & Others, the Deputyship Order did not contain provisions which granted authority for the Deputy to conduct litigation proceedings.. HHJ Hilder clarified matters with regards to professional Deputies instructing solicitors from their own firm to conduct litigation on behalf of the Protected Party.
HHJ Hilder explained that Deputyship Orders provided “general authority” to manage property and affairs. However, concerns were raised in relation to the interpretation of what is considered general authority, as it does not give a comprehensive definition of what this means.
As a result, she formed a series of questions to assist professional Deputies when a situations arise where the Deputy has to seek legal advice beyond their scope of expertise.
These questions were:
- What authorisation is required to conduct litigation on behalf of P?
- What about further proceedings in the Court of Protection?
- To what extent does “general authority” encompass authority to take legal advice on behalf of P?
- Where is the line between seeking advice and conducting litigation?
- What about urgent matters?
- How should conflicts of interest be addressed?
- What about cases where the Deputy is not the instructing party?
- What about acting as Litigation Friend?
- What if P has capacity to give instructions for the work in question?
HHJ concluded that the “general authority” to manage the property and affairs included ordinary, common and non-contentious legal tasks which are required to manage P’s estate efficiently.
For clarity, ordinary, common and non-contentious legal tasks include; instructing a conveyancer when purchasing or selling P’s property, dealing with leases and tenancy agreements when there is authority to let P’s property, and whether there are grounds to evict a tenant. It also includes, seeking advice in relation to the completion of tax return, discharging P’s financial responsibilities under a tenancy, applying for funds so care needs are met and dealing with employment contracts of directly employed carers and finally, taking steps to form a view about whether a debt incurred by P is properly payable pursuant to section 7 of the Mental Capacity Act 2005.
The judgment also provided details of situations where specific authority would be required, these include:
- Conducting litigation on behalf of P, except when the litigation is in respect of a property and affairs issue, or the seek directions in respect of welfare issue
- Where the Deputy has to make a decision, or act upon an issue in respect of P’s property and affairs, following the receipt of the Letter of Response. Anything up until that point, such as contemplation of contentious litigation would be covered by “general authority” of the Deputyship Order. Contemplation of contentious litigation includes obtaining Counsel’s opinion.
- Steps in contemplation of an appeal against the decision of an Education, Health and Care Plan.
- The Deputy’s general authority of property and affairs Deputyship Order does not include seeking advice or other steps prior to litigation in respect of welfare issues, however, does provide authority to make an application to the Court of Protection for further directions or to seek specific authority in respect of welfare proceedings.
- Delivering a letter of appeal in respect of a decision that P is not eligible for Continuing Healthcare Funding. Anything prior to the delivery of this letter of appeal would be covered by “general authority” granted in the Deputyship Order.
The outcome of the case provided the following advice to Professional Deputies;
- During the Deputyship Application process, the proposed Deputy should consider the likelihood of having to instruct another team in their firm to deal with specialist legal issues, and use the opportunity to seek authority within the original application.
- The Deputy must obtain three quotes for the proposed legal work and decide who the most appropriate solicitor is to instruct to conduct the work.
- If the costs are likely to, or have, exceeded £2,000.00 (plus VAT) then the Deputy must apply for authority from the court to incur these costs.
This could impact the Deputy’s costs as obtaining quotes from alternative solicitors can be more time consuming and therefore, incur more costs. If the matter is urgent, the Deputy may proceed with legal work, but should consider the cost risk if an application to the court is made for retrospective approval to claim the costs from the Protected Party’s estate.
In this case, Her HHJ Hilder allowed remuneration of costs following the event, but warned that this would be judged on a case by case basis. The Judgement was handed down on 27 February 2020, with the Office of the Public Guardian expecting Deputies to comply with the guidance by 1 April 2021.
Deputies are advised to be cautious when instructing professionals to carry out specialist legal work on the Protected Party’s behalf, and if a Deputy decides to instruct their own firm to carry out legal tasks then special measures are to be carried out to address the conflict of interest.
A copy of the full judgment can be found here.
For more information about this case, please contact Georgia Clarke here.