OPG Guidance regarding ACC & Others
Following the ACC and Others decision in early 2020, the Senior Judge of the Court of Protection has since issued guidance confirming the position regarding the authority of Deputies to obtain legal services and how conflicts of interest should be managed.
The guidance states that ordinary ‘non contentious’ tasks such as property conveyancing, managing leases, businesses and associated employment contracts, preparing tax returns, taking on advice of tenancy liabilities and arranging care are within the general authority of property and financial affairs Deputies.
It further states that for areas outside of the general authority of property and financial affairs Deputies, specific authority is required in order to conduct work. This includes to conduct litigation on behalf of P, use P’s funds to reimburse a third party instructed, matters relating to health and welfare and litigation for CHC funding appeals. The Deputy is required to apply to the Court of Protection for retrospective authorisation in order to carry out the actions stated above.
With regards to existing Deputies, the guidance makes it clear that there is a continuing expectation that Deputies will consider the limits of their own authority. It outlines that authorisation from the Court is required for all on-going and future work which falls outside of the authority of the Deputyship, as mentioned above. Deputies are expected to apply to the Court of Protection where projected costs exceed £2000 plus VAT. The Deputy should make a proportionate decision in circumstances where obtaining three quotes would incur more costs than the proposed work.
It states that the OPG expect Deputies to make the appropriate application for authorisation by 1 April 2021. The application is for authorisation where the provision of services to P may constitute a conflict of interest and costs exceed £2,000 plus VAT. The guidelines extend to any situation where the Deputy is considering the procurement of services for P, which may include provision from the Deputy’s own firm and hence constitute a potential conflict of interest.
The guidance also outlines that with welfare matters, other authorities may be better placed to act, such as local authorities and the NHS, who do not need authorisation to carry out urgent work outside the scope of Deputyship. They Deputy will need to consider whether they can ask someone else to handle the welfare issues and refer to the issues of those agencies.
The OPG outline that they require applications to be made in respect of any unauthorised work started or ongoing since the date of the judgement by 1 April 2021.
The guidance can be found here: https://www.deputiesforum.co.uk/blog/opg-has-published-new-guidance-which-deputies-must-comply-with-by-1-april-2021
As always, if you have any questions about the above please contact Ellie Howard-Taylor on 0113 288 5660 or by email at ellie.howard-taylor@clarionsolicitors.com
