What happens with costs following the death of P? A claim for costs that have been incurred during the Protected Party’s life time which are to be paid or charged on 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 by the Practice Direction 24B (P.10). This includes the costs incurred for the Deputyship general management period and wind up of Deputyship post death of the Protected Party. 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.
Historically, where the Deputy’s costs could not be agreed, a Bill of Costs was submitted for assessment. However, a recent Costs note from Costs Judge James and Costs Judge Whalan confirms that costs post-death would not be covered by the Deputyship Order and the Court of Protection’s jurisdiction ceases upon the Protected Party’s death.
Further confirmation was received that the Court of Protection have no jurisdiction to make orders regarding costs incurred after death. The Costs note provides confirmation that the Court of Protection Rule 19.11 is limited to the costs incurred during the lifetime of the Protected Party for this reason. It goes on to explain that Costs Officers and Costs Judges assessing and Court of Protection Bills of Costs that include post-death costs will be told to strike through them and annotate the Bill of Costs as a reminder of the Court of Protection jurisdiction.
Another point raised in the guidance note is that as long as the costs incurred are up to the date of the Protected Party’s death, there is no need for Deputies to seek any further Order for those costs to be assessed before seeking an assessment by the SCCO. The Court would also deem costs incurred for the Deputy obtaining an Order seeking assessment of costs incurred post death would be regarded as unnecessary and would not be paid for the work.
The Costs note did not provide any guidance as to alternative ways for practitioners to be paid for the work incurred post-death, and they specifically stated that the SCCO was not in a position to issue any guidance. It would be advised for Deputy’s and practitioners to liaise with those dealing with the Protected Party’s Estate following death to determine how to proceed.
