Today, the SCCO have released a notice regarding post-death costs in the Court of Protection. It comes following a consultation with the Court of Protection (COP) on the correct way to deal with costs after the death of P.

 Costs “up to the date of P’s death” are covered by the deputyship order – the relevant COP Rules and precedents on this are clear and no further order is needed for any costs incurred whilst P is alive and lacks capacity, to be assessed.

The COP’s substantive jurisdiction ends upon the death of P, the COP have no jurisdiction to make an Order about costs incurred after the death of P. COP Rule 19.11, which states “An order or direction that costs incurred during P’s lifetime be paid out of or charged on P’s estate may be made within 6 years after P’s death.” is expressly limited to costs incurred during the lifetime of P for this reason.

The note outlined that Costs Officers and Judges who assessed any COP bill containing costs incurred post death, will strike through the work and annotate the bill with the following wording:

 ‘Costs post-death are not covered by the existing deputyship order. The COP’s substantive jurisdiction ends with the death of P. As the COP has no jurisdiction to make orders about costs incurred after the death of P, the SCCO therefore has no jurisdiction to assess these costs under the COP Rules 2017.’  

Previously, we saw Deputies were allowed around £1,500 plus VAT worth of work, as reasonable, for dealing with matters following the death of P. This work would tend to include concluding their involvement as Deputy and passing the matter to probate.

However, it is now clear that Deputies will not be paid for any work post death of P.

The SCCO ask that if any bill has already been filed where costs are incurred following the death of P, Deputies notify the SCCO of the date of P’s death as soon as possible by email to SCCO@justice.gov.uk. Where bills have not been filed for assessment, Deputies are to ensure this information is provided at the beginning of the bill for assessment.

This case looks at a best interest decision concerning whether an 89-year-old diagnosed with Alzheimer’s should move back to Jamaica to be with his family.

The application concerns XX, 89 years old and originally from Jamaica but came to the UK to live and work in the 1960s. The application was brought under s.21A of Mental Capacity Act 2005 (MCA) on 28 January 2021. XX was accepted by all parties to lack capacity for the purposes of the MCA.

He has a diagnosis of Alzheimer’s and has lived at his current care home since December 2020, after he was discharged from hospital following a collapse. His family from Jamaica had proposed that he return to live with them under a care package (commended by Lieven J) including travel by air ambulance paid for out of XX’s capital.

In the course of the proceedings, a report under s.49 MCA was ordered and produced by Dr Pantula, a consultant in Old Age Psychiatry. She interviewed both XX and a staff nurse at his current care home. The interview only lasted 20 minutes as XX became distressed. Mrs Justice Lieven stated, “I did not intent any criticism for the shortness of that interview, but it does show the difficult circumstances of the interview.”.

Dr Pantula’s report set out that XX needed considerable encouragement but once persuaded, was willing to talk. Her report made clear that during the meeting, XX did not understand about his family in Jamacia, said he did not know where he was or know anything about his family. Clearly during that interview, he was confused. Dr Pantula referred to physical deterioration since December 2021 and health problems. She referred to the fact he needed help to mobilise in the morning and help to persuade him to.

Previous assessments of XX referred to him being jovial and laughing, reggae improved his mood and he danced in response to music at the care home. Her conclusion is that she could not see why XX would not be able to settle in Jamaica and that the evidence suggests he enjoys activities closer to his culture and that may have an overall benefit. She does say it is possible that it will be difficult to re-adjust in Jamaica as he would be disorientated.

In terms of travelling, all parties agree now he is too frail to travel on normal flight and therefore an air ambulance would be required. The Jamaican family had put together a package to get XX to Jamaica which would cost in the region of £100k. It was noted that XX’s capital was in the region of £150k. This was not a case where, in my view, money was the critical feature as it could be said to cut both ways.

One of the points raised by Mr Daley was that the cost of him staying at his current care home was around £40k a year and that would be used up fairly quickly, but if he went back to Jamaica, care would be cheaper and there was more family support. There was enough money for his travel to be paid for and for there to be a pot of capital remaining for paid care in Jamaica.

Mrs Justice Lieven considered the best interest tests under s.4 of the MCA, a similar case considered by Mr Justice Hayden in Re UR, a case that concerned a lady from Poland and whether she should return to Poland, and article 8 of the ECHR.

A complicating factor as Lieven J highlights at [5] was that the delays in the courts following the pandemic meant that XX’s health had deteriorated from the time of the application in early 2021 until this decision in July 2022. She concluded that the move was still in XX’s best interests as it reflected his wishes and at [32] she adds:

“There are also in my view intangible benefits that lie in the nature of human feeling and experience for XX to spend those last years with a loving family around him rather than being cared for by strangers in a care home.”

Ellie Howard-Taylor, Paralegal, in the Costs and Litigation Funding Department.