Court of Protection rules on seeking advice, conducting litigation, conflict of interest

In what is essentially a test case, Her Honour Judge Hilder, Senior Judge of the England and Wales Court of Protection (EWCOP), recently handed down a judgment with significant implications of professional Deputies.

Her ruling concerned the conflicts of interest that may arise where a professional property and affairs Deputy (a solicitor) instructs their own law firm to carry out acts or conduct litigation for the person who is the subject of the deputyship order. In the three specific cases considered, the Deputies' decisions to litigate on behalf of the protected person without prior authorisation were thought to be justified. Authority was retrospectively granted to them enabling recovery of legal costs from the protected person's assets, however the court stressed that property and affairs Deputies should not take this ruling to mean that after-the-event authorisation will be granted on other occasions.

 The case for appointing a professional Deputy remains strong.  In JR v Sheffield Teaching Hospitals NHS Foundation Trust, the court looked at what damages a 24 year old with severe cerebral palsy ought to receive.   One of those areas was the cost of a professional Deputy, which was considered appropriate since the family, although helpful and supportive, did not have a lot of financial experience.

At the other extreme, the notorious, although rare, case of Cathy Svendsen  (who with her ex-husband used her disabled daughter’s award to buy  holidays, houses, a pink Mini Cooper and breast enlargements) justifies the Court of Protection generally not considering  family members as  appropriate Deputies where substantial damages for personal injury have been awarded.

Her Honour Judge Hilder accepted the Official Solicitor’s arguments that obtaining legal advice, and even choosing to instruct the Deputy's own firm, will sometimes be within a Deputy's general authority, but accepted that it was in the protected person’s best interests that such advice be not only authorised specifically by the court, but also obtained from a different firm.

In cases where a property and affairs Deputy wishes to instruct their own firm to carry out legal tasks, the Deputy must now:

• obtain three quotations for the work proposed (including one from the deputy’s own firm)
• make a ‘best interests’ decision as to which of the providers to instruct (properly documenting the decision-making process)
• Should the anticipated costs exceed £2,000 + VAT, they must apply to the court for specific authority to incur the costs
• set out legal fees so incurred in the annual account submitted to the Office of the Public Guardian by the Deputy

A property and affairs Deputy may still make an application to the court in respect of property and affairs issues without a prior application for authority to do so. For example: a Deputy wishing to obtain authority for the sale or purchase of property. 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 themselves.

That same “general authority” may also include authority to take some legal advice in respect of some contentious litigation, but a distinction is drawn between the contemplation of litigation in property and affairs, and the contemplation of other litigation – such as for example action to secure an Education, Health and Care Plan (EHCP).

The latter is unlikely to fall within the general authority of a property and affairs Deputy, and so would require specific authority from the Court of Protection.  Where matters are so urgent that authority to litigate cannot reasonably be obtained before taking action, the Deputy does so at their own risk as to costs but may make an application to court for retrospective approval and authority to recover costs.  There is no guarantee that such an application would be successful, as in the three cases considered.

While Her Honour Judge Hilder’s ruling has several implications for professional property and affairs Deputies, the impact on their ability to adequately serve a young vulnerable client’s best health and welfare interests could be even greater.  At Shoosmiths, many partners act as professional Deputies for several youngsters, such as James Robshaw, whose lives have been devastated due to medical negligence at birth. 

Victoria Federico, head of Shoosmiths Education Law team, commented:

“The judgment makes clear that there is an expectation that Deputies will consider the limits of their own specific authority and address any potential conflicts of interest with each step that they take. Aside from the measures needed to make the lives of children injured at birth as comfortable and fulfilled as possible, litigation is often required to provide the specialised SEN education these youngsters will need, which is seldom granted by local education authorities without a protracted legal struggle. Those firms without such a specialist capability in-house or a lack of contacts in order to obtain the required three quotations may face considerable difficulties in serving their client’s best interests.”

More information about Shoosmiths’ Court of Protection expertise in particular can be found here.

More information about Shoosmiths’ education law expertise can be found here.