This was a test case concerning the conflicts of interest that may arise where a solicitor Property and Affairs Deputy instructs their own law firm to carry out acts or conduct litigation for the person who is the subject of the Deputyship Order (“P”).
The matter before the Court concerned three individuals, each of whom had a Deputy for Property and Affairs. None of the relevant Deputyship Orders contained any express provision either granting or excluding authority for the Deputy to instruct solicitors or to conduct any kind of proceedings on behalf of P.
The three individual cases were listed to be heard together so that the Court could consider the wider issues of costs and conflicts of interest in situations where Property and Affairs Deputies instruct a legal firm (and/or litigation friend) with which they are associated. Additionally, the applications raised the question of whether it is within the scope of a Property and Affairs Deputy’s general authority to instruct solicitors and conduct litigation on behalf of P.
The Judge’s conclusions included that the “general authority” conferred upon a Property and Affairs Deputy does not include authority to conduct litigation on behalf of P.
In respect of proceedings in the Court of Protection, a Property and Affairs Deputy may make an application to the Court in respect of property and affairs issues without a prior application for authority to do so. However, that Deputy does not have the same authority to conduct other proceedings. If a health and welfare issue arises, the Deputy should bring the need for welfare proceedings to the attention of the Court and seek further directions, rather than initiating those proceedings him or herself.
“General authority” does not extend to routine non-contentious legal tasks as a matter of course. However, a Property and Affairs Deputy’s authority to do an act on behalf of P includes such ordinary legal tasks (short of taking proceedings) as are ancillary to giving effect to that exact authority. For example, preparing a tax return is an ordinary part of managing property and affairs, therefore it is within the general authority of a Property and Affairs Deputy. Seeking advice from a tax expert about how to complete the tax return, or delegating the preparation of the tax return, may be an appropriate step within the general authority of a deputy.
“General authority” may also include authority to take some legal advice in respect of some contentious litigation. Again, a distinction must be drawn between the contemplation of litigation in the realm of property and affairs, and the contemplation of other litigation. The latter is unlikely to fall within the general authority and so would require specific authority from the Court. Even in the case of property and affairs litigation, a Deputy would only be permitted to go as far as writing a Letter of Claim and receiving a Letter of Response before requiring specific authority to proceed further.
Where matters are so urgent that authority to litigate cannot reasonably be obtained before taking action to protect P, the Deputy proceeds initially at his own risk as to costs, but may make an application to Court for retrospective approval and authority to recover costs from P. The Judge included a summary of her conclusions as an appendix to her Judgment.
The full judgement can be read here
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