Category: Court of Protection

Fixed Costs and Remuneration of Professional Deputies

Laura SugarmanLeave a comment

On 18th June 2025, the Office of the Public Guardian issued new guidance in relation to fixed costs and remuneration of professional Deputies. The purpose of the guidance is to set out the general principles regarding fixed costs and the Public Guardian’s position on issues relating to fixed costs.

As you will be aware, rule 19.13 of the Court of Protection Rules confirms that Deputies can be remunerated for costs they incur when performing their duties as Deputy. The Court may order that the Deputy is allowed to take fixed costs. These are outlined in Practice Direction 19B (PD19B), which was recently updated, on 1st April 2024. Whereby the management period ended before 1st April 2024, the rates set out in the previous PD19B would apply, however if the period covered by the fixed costs ends on or after 1 April 2024, the rates outlined in the latest version of the Practice Direction apply. Generally speaking, a management period would run on an annual basis, however this guidance confirms that if the period is less than a year (for example if there is a change in Deputy or P passes away) the fixed costs claimed should be apportioned accordingly.

It is important to ensure that if you want to have your costs assessed but the Court Order only allows for fixed costs, the Deputy will not be allowed to take any costs higher than fixed costs as per the case of The London Borough of Enfield v Matrix Deputies Ltd & Anor. Our advice would be to apply to the Court of Protection to have the costs clause varied to allow for the costs to be assessed in these circumstances.

The guidance also reiterated the definition of net assets as per the case of Penntrust Ltd v West Berkshire Council & Anor. This case confirms that net assets is the total assets minus total liabilities. This includes any property owned by P, regardless of if they are currently residing in the same.

Whereby P has net assets of less than £20,300, the Deputy will not be permitted to have their costs assessed. Instead, they can take an annual management fee not exceeding 4.5% of P’s assets. The guidance also confirms that if there is a pending settlement which would take P’s assets significantly above £20,300, the Deputy should apply to the Court of Protection to seek authority to delay taking costs until the settlement funds have been received. This is a move away from previous guidance which has stated that the Deputy can only have costs assessed if P has assets above the threshold on the anniversary of the Court Order.

Further guidance has now been issued in relation to tax returns. Fixed costs can be taken for the completion of a basic tax return and complex tax return. It has been difficult to determine what would account for a complex tax return and therefore this guidance is very welcomed. The guidance states that:

‘PD 19B defines a basic tax return to cover cases where P’s income is derived primarily from bank or NS&I interest and taxable benefits, discretionary trust or estate income. A complex tax return may be defined as one which also includes income form more complex investments including stocks, shares and bonds, rental property, business income and foreign property. Public authority deputies may charge up to £89 for a basic tax return as set out at paragraph 18 of Practice Direction 19B to include bank or NS&I interest and taxable benefits and may charge an amount not exceeding £89. They may charge P for the completion of more complex tax returns as a specialist service P would be expected to play for if they retained capacity.’

Guidance has also been provided in the event of P’s death. The Public Guardian recommends that the Deputy agrees any costs with the personal representative of the administrator of P’s estate. Further, the guidance states that the Deputy is not permitted to take final costs after P’s death, if the estate has not yet been settled.

If you have any questions, please get in touch with Laura Sugarman for further information – laura.sugarman@clarionsolicitors.com.

EG v P [2024] EWCOP 80 (T3) – Court Rules Out Drug Debt Payment in Complex Capacity Case

elliescallyLeave a comment

A recent ruling by the Family Division, delivered by Sir Andrew McFarlane, addressed a deeply complex and sensitive case involving a young man (“P”) in his 20s who suffered catastrophic brain injuries in a car accident at age two. Although he lives a largely autonomous life, the court oversees his significant financial assets through appointed deputies due to his limited capacity to manage complex financial decisions.

Background

P was awarded substantial compensation due to his childhood injuries. While he manages parts of his daily life independently including relationships, parenting, and routine financial matters, his finances are still overseen by deputies appointed under the Court of Protection.

A prior psychological assessment had confirmed P had capacity to sign a cohabitation agreement, but the matter recently escalated when P became embroiled in a serious criminal issue.

The Criminal Context

Over a year ago, police raided P’s property and discovered a significant quantity of class A and B drugs. P was arrested and is believed to be partly responsible for selling and storing the drugs. The matter took a darker turn when P informed his deputies that he was being threatened by an organised crime group to pay £17,000 as his “share” for the confiscated drugs.

Fearing for his safety, P requested that money be released to pay the debt. However, this placed the deputies in a legal and ethical dilemma.

Legal and Professional Risk

The deputies sought legal opinions which made it unequivocally clear: any payment toward the drug debt would likely constitute a criminal offence under the Proceeds of Crime Act 2002. Furthermore, they could face professional misconduct charges under the Solicitors Regulation Authority (SRA) code of conduct.

As a result, the case turned on a critical legal question: Does P have the mental capacity to decide to pay this drug debt?

Capacity Assessment

A detailed capacity evaluation by Dr. Geoff Hill, a consultant neuropsychologist, concluded that P lacked the mental capacity to make this complex decision. Although he understood the immediate relief he might gain from paying the debt, he could not sufficiently comprehend or weigh the longer-term risks — including legal consequences and future threats.

Dr. Hill found deficits in P’s executive function, reasoning ability, and memory retention, all linked to his original brain injury.

Court’s Decision

Sir Andrew McFarlane accepted Dr. Hill’s assessment and ruled that P lacked the capacity to make this decision. Accordingly, the court refused to authorise any payment towards the drug debt, noting that doing so would be tantamount to the court indirectly engaging in criminal conduct.

Although the Official Solicitor (representing P’s interests) urged the court to dismiss the application entirely, Sir Andrew declined, recognising the deputies’ difficult position and need for legal clarity and protection.

Conclusion

This case underscores the delicate balance the Court must strike when dealing with adults who retain partial autonomy yet require safeguarding in complex circumstances. It also highlights the serious implications of criminal involvement for individuals under protection, and the boundaries professionals must not cross, even with good intentions.

You can find out more about our services here or you can contact the Costs and Litigation Funding team at costs.support@clarionsolicitors.com

Updated practice guidance released by the OPG and SCCO – an important reference point for professional deputies!

Ella WilkinsonLeave a comment

On 28 May 2025, the good practice guidance previously issued by the Office of the Public Guardian (OPG) and the Senior Courts Costs Office (SCCO) was updated. This guidance exists to assist professional deputies in respect of their costs estimates, preparing and submitting bills for assessment and in understanding what work can be claimed and recovered. The vast majority of the contents remain similar to the original guidance released by the OPG and SCCO dating back to 2016 in respect of the expectations from professional deputies in regards to general good practice and the SCCO’s approach to assessment, however more recent developments have now been factored in such as the use of the E-bill and the CE File system, the case of ACC and Others, the latest stance regarding post death costs and the increased hardship threshold.

This blog summarises the key points raised, to ensure that professional deputies continue act in P’s best interests and comply with the requirements of the OPG, SCCO and Court of Protection. Importantly, the guidance issued is not intended to replace existing provisions such as the relevant Civil Procedure Rules, Practice Direction 19B (supplementing Part 19 of the Court of Protection Rules 2017), the Mental Capacity Act (2005) Code of Practice, and the OPG professional deputy standards.

Principles of Good Practice

Professional deputies are entitled to claim reasonable and proportionate costs. Key expectations include:

  • Aligning costs with the value of P’s estate and the work involved
  • Delegating tasks to appropriately graded staff
  • Acting transparently and always in P’s best interests
  • Evaluating whether their continued role remains necessary as P’s situation stabilizes
  • Where deemed appropriate, deputies should be open and transparent about their charges with P’s relatives

Deputies who fail to follow this guidance may need to justify their decisions, and the OPG may take action, including applications to remove a deputy where concerns arise.

Costs Estimates

  • The OPG105 must be submitted with the annual deputyship report, and in most cases it should take no more than 30 minutes to complete
  • If billed costs exceed the original costs estimate by 20% or more, deputies must explain the discrepancy
  • Significant changes in P’s circumstances should be reported to the OPG if they will impact costs

Assessment of General Management Costs

The SCCO’s role is to assess whether claimed costs are reasonable and proportionate. Their key considerations include:

  • Hourly Rates: these must generally align with the relevant SCCO Guideline Hourly Rates (except in the most exceptional circumstances)
  • Delegation: routine tasks, such as arranging payments or bank reconciliations, should be completed by administrative staff or Grade D fee earners at best. In addition, when reviewing time claimed for delegation, the SCCO will consider if the time clamed was reasonable, proportionate, progressive and that it serves to reduce costs
  • Home Visits & Contact: usually, only one home visit per year is allowed unless justified
  • Welfare Work: these cannot be claimed under property and affairs general management costs unless the Court of Protection gives permission
  • Overheads: routine supervision, internal communication, and basic administrative tasks are considered overheads and are not generally not recoverable
  • Payment of Bills: three minutes will be allowed for payments per instance, and no further time is usually allowed for amending records to reflect payments made or advising a party of a payment processed to them
  • Financial Beauty Parades: generally, only one senior fee earner will be allowed on assessment for attending these meetings
  • File Notes: if no or little documentary evidence is supplied in support of the bill and/or particular items of work claimed, it is likely that the SCCO will disallow the costs claimed
  • Litigation Costs: the SCCO will disallow costs which could be claimed within the context of ongoing litigation
  • Draftsman’s Fees: a Grade D rate will be allowed for the preparation of bills of costs, unless in exceptional circumstances

ACC & Others Judgment

Where work falls outside of the scope of general authority for the management of P’s property and financial affairs, a professional deputy may need to apply for further authority in respect of this work and the associated costs as per ACC & Others. The full judgment can be seen here: ACC & Ors ( property and affairs deputy ; recovering assets costs for legal proceedings) – Find Case Law – The National Archives, and we have also previously prepared a blog summarising this and the practical implications for deputies which can be found here: ACC & Others – A Useful Recap – Clarion Legal Costs

Submissions of Bills of Costs & Supporting Documentation

  • Bills of costs should ideally be submitted annually for assessment, as close to the end of the management year as possible
  • Bills covering less than a year can be submitted where there has been a transfer of deputyship and the deputy intends to realign the management period dates with the new order. If this transfer is internal within the same firm, such bills must span at least six months of work unless in exceptional circumstances
  • Bills must be submitted via CE file, and can either be the traditional bills of costs set out under Practice Direction 47 CPR Part 47, or in the newer E-Bill format
  • The short form bill format is required where costs claimed are under £3,000.00 (excluding VAT and any disbursements claimed)
  • Supporting documents submitted alongside the bill should include the OPG105, deputyship report (OPG102/103), any relevant Orders made by the Court of Protection providing authority for work falling outside of the general authority, as well as evidence in support of the hourly rates claimed (client care paperwork)

Post-Death Costs and Hardship

On P’s death, the deputyship will come to an end and the jurisdiction of the Court of Protection will cease. Costs incurred post-death are not assessable by the SCCO. The deputyship order however will continue to authorise detailed assessment of costs incurred during P’s lifetime, if these cannot be agreed with the executor of the estate. If the professional deputy is also appointed as executor, a potential conflict of interest arises and a bill of costs should be submitted to the SCCO for assessment.

Where P’s estate has a value of less than £20,300.00, deputies must follow specific directions set out under Practice Direction 19B with regards to hardship. This states that in such circumstances, ‘the professional deputy for property and affairs is not permitted to apply for assessed costs; instead they may take an annual management fee not exceeding 4.5% of P’s net assets on the anniversary of the court order appointing the professional as deputy’.

Summary

The guidance aims to encourage fairness, consistency, and clarity in the way the costs of professional deputies are managed and assessed. For deputies, it reinforces the importance of transparency, efficiency, and the diligent management of P’s affairs.

Professional deputies are urged to familiarise and refresh themselves with the full guidance and relevant existing provisions to ensure that they continue to act in line with best practice expectations and requirements.

If you would like to review the guidance in full, this can be found at: Professional Deputy Costs – GOV.UK

W v P [2025] EWCOP 11 (T3): A Recent Decision in the Court of Protection

Lydia MarshallLeave a comment

The case of W v P [2025] EWCOP 11 (T3) is a significant decision from the Court of Protection that sheds light on key aspects of mental capacity law and decision-making in vulnerable individuals. The case touches upon the legal principles underpinning the Mental Capacity Act 2005, particularly regarding the balancing of an individual’s rights and the need for protective intervention.

Background

W v P involved a complex dispute over whether P should be subjected to certain types of care and treatment under the Mental Capacity Act 2005. The issue at hand was whether the Court should authorize certain actions that would otherwise infringe upon P’s rights.

P had been diagnosed with a condition that severely impaired their mental capacity, affecting their ability to make decisions regarding their care and welfare. A key aspect of the case was whether P could make decisions about their daily living arrangements and, if not, who should have the authority to make these decisions on their behalf.

The applicant in this case, W, was seeking to secure specific decisions about P’s welfare and medical care. The court had to examine whether those decisions were in P’s best interests and whether they adhered to the legal requirements under the Mental Capacity Act.

Key Legal Issues

  1. Best Interests Test: Central to the case was the application of the best interests Under the Mental Capacity Act 2005, any decision made on behalf of someone who lacks capacity must be based on what is in their best interests. This means the court must consider the person’s wishes, feelings, beliefs, and values where possible, and take into account their prior wishes and any relevant evidence.
  2. Autonomy vs Protection: The court considered the balance between respecting an individual’s autonomy and ensuring protection for those who are vulnerable. The court was tasked with determining the extent to which P’s rights to autonomy could be limited in favour of ensuring their safety and well-being.
  3. Lack of Capacity: P’s lack of capacity to make decisions was central to the case. The court had to assess the degree to which P was unable to understand or make decisions about their care and treatment.
  4. Role of Family Members: The role of family members was also critical in this case. W, as the applicant, sought to ensure that the decisions made on P’s behalf were in line with what P would have wanted. However, the court also had to weigh in on whether these decisions were truly in P’s best interests, even if they conflicted with the views of family members.

Court’s Decision

The Court of Protection ultimately decided that the care and treatment decisions proposed by W were appropriate, taking into account expert evidence, the views of healthcare professionals, and what could be determined about P’s past wishes. The judgment emphasized the importance of involving those close to P, such as family members, but also that the court must ultimately make decisions based on the best interests of the individual to ensure personal freedom is not infringed upon unless absolutely necessary.

Implications for the Future

The case of W v P reinforces that while autonomy is a key principle, there are circumstances where individuals may need protective measures to safeguard their well-being. It is important to consider the balance between protecting vulnerable individuals and respecting their autonomy when making such decisions. This case also serves as a vital example for legal professionals, carers, and healthcare providers, highlighting the complexities involved in making decisions for those who lack mental capacity.

You can find out more about our services here or you can contact the Costs and Litigation Funding team at costs.support@clarionsolicitors.com.

 

CT v London Borough of Lambeth & North Central London ICB ([2025] EWCOP 6)

hawamayetLeave a comment

In the recent case of CT v London Borough of Lambeth & North Central London ICB ([2025] EWCOP 6), the Court of Protection addressed issues concerning mental capacity assessments, particularly the role of ‘insight’ into one’s mental health conditions.

Background

CT, a man in his 50s, sustained a head injury at age 12, leading to epilepsy and cognitive impairments. Despite being medically fit for discharge from the hospital, he faced potential homelessness due to a lack of suitable placements. On September 5 2024, a Judge concluded that CT lacked the capacity to make decisions regarding his residence and care, resulting in his continued detention in the hospital under a Deprivation of Liberty authorisation. This decision was challenged, leading to the appeal.

Legal Issues

The appeal focused on whether the initial capacity assessment inappropriately conflated CT’s mental impairments with his decision-making abilities. Specifically, it questioned the inclusion of CT’s lack of ‘insight’ into his psychiatric diagnoses as a factor in determining his capacity. The Court examined whether the Statutory criteria under the Mental Capacity Act 2005 were correctly applied, emphasizing that ‘insight’ is a clinical concept separate from the legal assessment of capacity.

Judgment

Mrs. Justice Theis allowed the appeal, finding that the lower Court had set an excessively high standard by requiring CT to have insight into his mental impairments as part of the capacity assessment. The Judgement highlighted that capacity assessments must adhere strictly to the Statutory framework of the Mental Capacity Act, avoiding the conflation of clinical insight with legal capacity.

Implications

This case reinforces the necessity for precise application of the Mental Capacity Act in capacity assessments, ensuring that individuals are not unjustly deprived of their decision-making rights based on their mental impairments. It highlights the importance of distinguishing between clinical insight and legal capacity.

The Judgement also provides a checklist to assist in conducting proper capacity assessments, emphasizing adherence to Statutory criteria without additional considerations of clinical insight.

This ruling serves as a reminder of the legal principles governing capacity assessments and the need for meticulous application to uphold the rights of those with mental impairments.

You can find out more about our services here or you can contact the Costs and Litigation Funding team at costs.support@clarionsolicitors.com.

The importance of fulfilling duties as Deputy – the recent case of AECO, Re [2025] EWCOP 5 (T2)

Leah MorrisLeave a comment

In the recent case of AECO, Re [2025] EWCOP 5 (T2), HHJ Cronin addressed the Public Guardian’s application to remove JO as the Deputy for AECO, a woman with Retts Syndrome and several mental and physical disabilities. The case centred on concerns regarding JO’s ability to properly manage AECO’s finances and property. AECO, who has always required significant care, was represented by her mother, JO, and her brother, but JO was not represented legally during the hearing.

JO had served as AECO’s Deputy since 2014, but the Public Guardian raised multiple issues concerning her management of the Deputyship. These included a failure to submit timely annual reports, late payment of supervision fees, mixing AECO’s funds with her own, the improper occupation of AECO’s property, and questionable financial transactions involving large sums directed towards JO and her son. Additionally, JO was accused of not cooperating with the Public Guardian and the interim Deputy.

Key Issues with JO’s Conduct

1. Failure to Report and Pay Fees: JO had failed to submit annual supervision reports on time for several years and was behind on her payments for supervision fees, despite reminders.

2. Mixing of Funds: JO did not open a designated Deputyship bank account for AECO, mixing AECO’s money with her own. This made it impossible to distinguish between their finances.

3. Property Occupation: JO and her son had stayed in AECO’s property for extended periods without contributing to the additional costs, which was a breach of proper financial stewardship.

4. Questionable Financial Transactions: There were concerns about large sums of money being transferred to JO and her son, which required further investigation.

5. Lack of Cooperation: JO had failed to provide necessary documents and cooperate with professionals, despite clear instructions.

These failures had resulted in financial mismanagement, potentially harming AECO’s entitlement to housing benefits and violating her tenancy agreement. The judge emphasized that AECO’s money had been mismanaged, and the situation had become untenable for her continued well-being.

The Court’s Decision

The Court concluded that JO was no longer fit to serve as AECO’s Deputy. Her repeated failures in managing AECO’s affairs and her lack of cooperation with the necessary authorities left AECO’s financial situation precarious, as her money had been lost. In light of these issues, it was determined that removing JO as the Deputy was in AECO’s best interests.

Despite the Court’s desire for a family member to manage AECO’s affairs, they found that no suitable family member was available to take on this responsibility. As a result, the Court confirmed the appointment of Jenny Pierce, an experienced Court of Protection Deputy, to manage AECO’s property and affairs moving forward.

Conclusion

This case highlights the importance of transparency, responsibility, and cooperation in managing the affairs of vulnerable individuals. When a Deputy fails in their duties, it can have serious consequences for the individual they are meant to protect. In this case, the Court’s decision to remove JO and appoint a professional Deputy underscores the need for proper oversight in managing the property and finances of those who cannot do so themselves.

You can find out more about our services here or you can contact the Costs and Litigation Funding team at costs.support@clarionsolicitors.com.

Understanding the Role of Court of Protection Visitors and the Release of Reports

elliescallyLeave a comment

The Court of Protection plays a critical role in decisions related to individuals who may lack the mental capacity to make important decisions for themselves. Central to this process are Court of Protection visitors, whose work is integral to the assessment, supervision, and investigation of such individuals, including those with deputies or attorneys appointed to act on their behalf.

In this blog, we’ll delve into the responsibilities of these visitors and the complex guidelines surrounding the release of the reports they generate.

Who are Court of Protection visitors

Court of Protection visitors are appointed to assess the circumstances of individuals involved in legal matters under the Mental Capacity Act 2005. The role of these visitors is statutory.

There are two main types of Court of Protection visitors:

• Special Visitors – These are typically medical professionals with specific knowledge of mental capacity, which refers to a person’s ability to make decisions at a particular time.
• General Visitors – These individuals may not hold medical qualifications but must have experience in mental capacity assessments.

The Office of the Public Guardian administers a panel of these visitors, who are mainly contracted to carry out these duties across England and Wales, although a small number are employed directly by the Office of the Public Guardian.

What do Court of Protection visitors do?

Court of Protection visitors carry out visits to individuals as directed by the court or the Office of the Public Guardian. These visits may involve people who have a Deputy, a registered Enduring or Lasting Power of Attorney, or even individuals who are under investigation prior to Lasting Power of Attorney registration. Their visits aim to gather essential information to ensure that the decisions made on behalf of someone lacking capacity are in their best interests.

Visitors are authorized to:

• Interview the individual in private.
• Review and copy relevant records, such as medical, social services, and care records.
• Independently report back to the Office of the Public Guardian on matters related to the person’s welfare, and Deputy or attorney activities.

In some cases, the court may request a report from a visitor to aid in making a decision.

When can a report be released?

The release of visit reports is subject to strict rules, ensuring that only relevant individuals or parties have access to the information, and only when the law allows.

Under the Court of Protection Rules 2017, reports prepared by visitors for the court are generally made available to those directly involved in the case. This includes:

• The person making the application (the applicant).
• The person the application is against or who needs to respond (the respondent).
• Other parties involved in the case, as determined by the court.

Individuals who are not involved in the case can apply for a report, but the court may only provide an edited version. Requests can be made using form COP9, and the court may release reports without charge.

In certain circumstances, the Office of the Public Guardian can release a report to those involved in the case, including:

• Individuals interviewed during the report preparation, such as relatives, carers, or legal representatives.
• Entities included in an Office of the Public Guardian court application or during investigations, like police or local authorities.

Additionally, assurance visits may result in reports that can be accessed for transparency and oversight.

The Office of the Public Guardian has the authority to share visit reports with local authority social services, health bodies, or care providers if it is necessary for the person’s welfare, or to assist in supervising a Deputy or attorney’s actions.

If there is an ongoing investigation into potential criminal activity, reports may be shared with the police to aid their inquiry.

Individuals have the right to access personal information about themselves under the Data Protection Act 2018. This includes records held by the Public Guardian, such as visit reports. However, sensitive information not related to the subject of the request or information that could harm a third party may be redacted.

When might a report not be released?

There are specific circumstances where the Office of the Public Guardian can withhold or restrict the release of a report:

-Third-Party Data Protection: If releasing the report would infringe on another person’s privacy rights.
-Confidentiality: If a third party shared sensitive information with the visitor in confidence.                                                                                                                                                             •

Reports may also be redacted to protect the identities of certain individuals or to remove sensitive content that could pose a risk.

Publication of visit reports

The publication of Court of Protection visit reports is generally prohibited by the Office of the Public Guardian. This includes the sharing of reports or extracts in any public forum or publication. If you are considering publishing a visit report, approval from the Office of the Public Guardian is required to ensure compliance with legal standards and privacy concerns.

Conclusion

Court of Protection visitors play a vital role in protecting the interests of vulnerable individuals by providing independent assessments and reporting to the Office of the Public Guardian and the courts. The release of these reports is tightly regulated to ensure privacy, protect individuals’ rights, and safeguard sensitive information.

If you are involved in a Court of Protection matter or are considering seeking access to such a report, it is important to understand the rules governing the release of this information, and how the Office of the Public Guardian oversees these matters.

For any further information, please contact Ellie Scally at Ellie.scally@clarionsolicitors.com

Leicestershire County Council v P & Anor [2024]

Laura SugarmanLeave a comment

This recent case relates to a decision made regarding whether P held capacity to make decisions regarding her care and liaison with other individuals.

History

By way of background, P has a dissociative disorder which refers to mental health conditions that involve experiencing a loss of connection between thoughts, memories, feelings, surroundings, behaviour and identity. P has experienced complex psychological trauma and experts have previously testified that P’s ability to make decisions often fluctuates, especially during dissociative episodes.

Therefore, the circumstances whereby P experiences a dissociative episode needed to be addressed and considered. The Court was required to consider P’s loss of capacity during her episodes and whether it was in P’s best interests to allow the carers to intervene and assist with the decision making process during these periods.

Legal Framework

With regards to the legal framework of this case, the Vice President made the decision that P did have capacity when she was not experiencing a dissociative episode however, it was further suggested that the legal framework in the Mental Capacity Act 2005 needed to be relied upon to determine whether assistance and intervention was required to make decisions during P’s episodes.

Section 5 and 6 of the Mental Capacity Act 2005 framework provides: “General authority to those caring for P who reasonably believe both that P lacks capacity in relation to the matter and that it will be in P’s best interests for the act to be done. Using this framework will have the advantage that decisions are taken contemporaneously both as to capacity and best interests, having up to date information on matters such as P’s wishes and are more appropriate to guard against such infrequent occasions as in this case”

Conclusion

In conclusion, the Court was unable to make an anticipatory declaration following a detailed review of all evidence, as it was difficult to conclude when P had dissociated to the extent that she no longer held the ability to make decisions regarding her care and contact with other individuals.

You can find out more about our services here or you can contact the Costs and Litigation Funding team at costs.support@clarionsolicitors.com

New rules for property and affairs Deputyship applications: online submission becomes mandatory from 2 December 2024

Casey McGregorLeave a comment

Starting from 2 December 2024, legal professionals will be required to submit all property and affairs deputyship applications to the Court of Protection exclusively through the online submission portal. This change was announced by HMCTS (Her Majesty’s Courts and Tribunals Service) in an update sent out on 18 November 2024, with a clarification on 22 November confirming the correct date for the new rules.

What’s changing?

  • Previously, legal professionals had the option of submitting property and affairs deputyship applications on paper. From 2 December 2024, all property and affairs deputyship applications must be made digitally via the HMCTS online submission portal. This is part of an ongoing effort to modernise and streamline court processes. The online portal was initially launched in January 2023, following a successful pilot that began in 2021.
  • Property and affairs deputyship applications are typically filed when someone is unable to manage their own financial affairs due to incapacity, and a deputy needs to be appointed to act on their behalf. The Court of Protection oversees these applications, and from now on, the online portal will be the sole method for professionals to submit such applications.

Why the change?

  • The shift to a fully online process aims to make the deputyship application system more efficient, transparent, and accessible. Digital submissions reduce administrative burdens, speed up the process, and allow for better tracking of cases.
  • The updated Practice Direction 9H, which governs the process for property and affairs deputyships, will officially mandate online submissions for all legal professionals from 2 December 2024. Litigants in person will not be required to use the digital portal, although they are encouraged to do so if possible.

What happens if you don’t submit digitally?

  • For legal professionals, failure to use the digital submission portal after 2 December 2024 could have consequences. If an application is submitted on paper rather than digitally, the Court of Protection is unlikely to grant authorisation for recovery of the application costs from the Protected Party’s estate. This means that firms could face the financial burden of covering court fees, which would normally be reimbursed from the Protected Party’s estate.

Steps Legal Professionals should take going forward:

  1. To use the online submission portal, legal professionals must have an active Payment by Account (PBA) number. This free service allows firms to pay HMCTS-related court fees via direct debit. If your firm hasn’t already registered for PBA, it’s important to do so before the deadline to avoid any delays in submitting applications. Registration is available through the HMCTS online services portal.
  2. Legal professionals should make sure they are fully familiar with the new submission process, including how to upload documents, and complete the forms. HMCTS provides detailed guidance on how to use the online portal effectively.

You can find out more about our services here or you can contact the Costs and Litigation Funding team at costs.support@clarionsolicitors.com.