In handing down judgment on three cases relating to expenditure on litigation services by professional deputies, the senior judge of the Court of Protection took the opportunity to clarify when deputies must seek special authority before committing to certain legal services, and how to avoid conflicts of interest. The Office of the Public Guardian, the administrative body responsible for registering powers of attorney and supervising the activities of deputies appointed by the Court of Protection, has issued guidance based on this judgment, setting out what actions fall within the ‘general authority’ of a deputy and when specific authority is needed. The guidance relates specifically to a Property and Financial Affairs Deputyship, not Health and Welfare.
Special authority required for specialist legal services
Her Honour Judge Hilder made it clear in her judgment that it was not the intention of the court to stop a deputy from seeking specialist legal advice beyond their general authority, but to provide clear parameters to help them avoid conflicts of interest and ensure that their actions were in the vulnerable person’s (P) best interests. The OPG’s guidance reiterated that a deputy’s general authority extended to dealing with general property matters such as conveyancing, tax returns, employment contracts relating to care and so on. However, general authority does not cover litigation proceedings (for instance to pursue an appeal against a ruling determining some aspect of P’s care, such as CHC funding) except when conducted in the Court of Protection. Deputies are able to seek advice on whether litigation proceedings might be appropriate, including Counsel’s advice on the merits of the case and its likely success. However, they should not go further than issuing a letter of claim (and reviewing the response) without special authority to incur costs if they are likely to exceed £2000 (+VAT).
Transparency is key to avoiding conflicts of interest
If court of protection litigation is considered to be in the best interests of P, deputies need to be transparent about the reasons for employing the services of their own firms. To that end, they must provide evidence that their firm is the best placed to provide that advice by obtaining alternative quotes from other providers. They must also demonstrate that instructing their own firm is in P’s best interests and must set out the reasons why such an instruction does not amount to a conflict of interest.
It is accepted that there may be occasions where deputies have to act quickly and do not have the time to go out to tender. In that situation, they can apply to the court for retrospective authority to claim for costs incurred but, as HHJ Hilder was careful to point out, each application would be judged on its individual merit and the granting of such authority could not be taken for granted. Deputies must accept that if they proceed with litigation without seeking special authority, they are ultimately responsible for bearing the costs if the court does not agree that their actions were in the best interests of P.
We have considerable experience both of advising deputies on their obligations. If you need any advice on how to deal with a matter that is likely to require specialist legal advice, please do not hesitate to get in touch and we will be delighted to help.