Deputies acting for incapacitated clients should seek permission from the court if they want to start litigation on their behalf, a judge has indicated.
The Court of Protection last week ruled on guidance to deputies after hearing three cases where proceedings had been issued – and costs incurred – without authorisation. The issue was further complicated because in each case national firm Irwin Mitchell had acted as deputy and been involved in subsequent litigation.
Her Honour Judge Hilder said deputies were required to bring the need for welfare proceedings to the attention of the court. If the local authority or other institution was delaying matters, the deputy should draw the court’s attention to this.
Where work is non-contentious, the judge said deputies should ask themselves if they would have authority to act on the advice if taken. If not, then seeking advice in the first place would be outside their authority. The deputy will also be required as part of the normal ‘best interests’ decision-making process to consider whether the cost of the advice or work is proportionate.
On conflict issues, the judge said deputies should request specific authority to instruct their own firm to give advice or carry out a task. Where no specific authority has been granted prior to instructing their own firm a deputy must obtain three quotations for the work, document the decision-making process about which firm to use, and clearly set out any legal fees incurred in their account to the Public Guardian.
Addressing the three cases, the judge awarded costs retrospectively, and in the personal injury claim allowed Irwin Mitchell ‘not without some reluctance’ to be retrospectively instructed.
The judge 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.’
Irwin Mitchell had contended that one of the advantages of appointing a solicitor as deputy was that it provided people with ‘ready access’ to expertise. The applicant deputies said their authorisation included ‘unexceptional non-contentious legal tasks’, even if carried out by other members of the same firm.
Speaking after the ruling, Beth Perry, a partner at Irwin Mitchell, said: ‘We welcome the clarity provided by this judgment for all Court of Protection solicitors and professional property and affairs deputies that permission must be sought from the court for certain areas of specialist legal advice before undertaking the work.’