Tag: Clarion Court of Protection

Gifting – OPG updates gift giving guidance

hawamayetLeave a comment

The Office of the Public Guardian (OPG) has issued updated guidance on gift giving, with particular emphasis on loans and circumstances in which Deputies or Attorneys may seek to benefit themselves.

The guidance makes clear that a conflict of interest is likely to arise where an Attorney makes a gift or loan to themselves, or to members of their family, from the donor’s assets.

Further emphasis had been made relation to loans and the position is unequivocal: Attorneys should seek prior authority from the Court of Protection before making any loan to themselves or to their family.

A general authority contained within a Deputyship Order does not extend to the power to make loans. Deputies must not enter such arrangements unless they have obtained specific authority from the Court of Protection.

In respect of gifts, the OPG cautions: “If you do accept a gift for yourself, the Court of Protection can look carefully at whether the [donor] had capacity and may decide you went beyond your authority.”

The guidance further stresses that where a proposed gift does not fall within the statutory exceptions, an application must be made to the Court of Protection for approval.

 

For a refresher of the OPG gifting guidance, please see below.

Before making a decision regarding a gift to be made, 2 key points must be considered by the Deputy:

  1. Does P have capacity to make this decision themselves?
  2. If they lack capacity, is the decision in their best interests?

Best interests entails consideration of:

  • P’s past and present wishes
  • Their beliefs and values
  • Their relationships
  • Their financial security

 

What legally counts as a “Gift”?

  • Cash transfers
  • Cheques
  • Bank transfers
  • Selling property at an undervalue
  • Transferring shares
  • Forgiving a debt
  • Interest-free loans
  • Paying school fees or other costs for someone else
  • Adding someone to a property title
  • Setting up trusts for others
  • If full market value is not received in return, the transaction will usually be treated as a gift.

 

When gifts can be made without Court approval

Three conditions must be satisfied:

1: The gift is on a customary occasion

“Customary” refers to occasions that are culturally or socially normal in the context of the person’s life.

Examples include:

  • Birthdays
  • Christmas, Eid, Diwali, Hanukkah
  • Weddings or civil partnerships
  • Anniversaries
  • New births

 

2: The recipient is connected

The gift must be made to:

  • A family member
  • A friend or other person connected to them
  • A charity they have supported or might reasonably have been expected to support

 

3: The gift is reasonable in value

What is “reasonable” will depend on:

  • The size of the estate
  • P’s anticipated future care costs
  • Life expectancy
  • Income against expenditure
  • Existing financial commitments
  • Previous gifting patterns

 

The de minimis exceptions

The Court of Protection recognises that, in limited circumstances, a gift may technically exceed a Deputy’s authority but only to a minor extent such that a formal application is not required. These are referred to as ‘de minimis exceptions’ and apply only where P’s estate has a value of £325,000 or more.

When determining whether a gift falls within the de minimis exception, the Deputy must consider:

  • P’s life expectancy
  • The affordability of the proposed gift
  • Whether the proposed gift would affect P’s care costs, standard of care or quality of life
  • Whether there is any evidence that P would object to the gift being made on their behalf

The de minimis exception does not apply in the following circumstances, and an application to the Court of Protection will still be required:

  • Loans to the Deputy or members of their family
  • Investments in the Deputy’s business
  • Sales or purchases at an undervalue
  • Transactions giving rise to a conflict of interest between P and the Deputy

 

What Deputies cannot do without Court approval

An application must be made to the Court of Protection where a Deputy proposes to:

  • Make substantial gifts outside normal customary occasions
  • Undertake inheritance tax mitigation through significant lifetime gifting
  • Transfer property to family members
  • Create trusts
  • Use P’s funds to maintain someone other than P
  • Make loans
  • Alter property ownership structures
  • Equalise inheritance between children
  • Continue a historic pattern of high-value gifting

 

For the full guidance please click on the link Giving gifts – GOV.UK

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)

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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.

Increase to Court Fees

Stephanie KayeLeave a comment

The Government issued a public consultation on 22 March 2021. The Ministry of Justice is consulting on increasing some court fees in line with historical inflation dating from August 2016 to April 2021, or from the year the fee was last amended (capped at August 2016). The proposal is limited to fees which are under-recovering compared to the estimated cost of the service and to fees which are enhanced, meaning they can legally be set above the cost of service. The impacted fees are included in the following fee orders:

•            Family Proceedings Fees Order 2008 No 1054 (43 impacted fees);

•            Civil Proceedings Fees Order 2008 No 1053 (67 impacted fees);

•            Court of Protection Fees Order 2007 No 1745 (3 impacted fees); and

•            Magistrates Courts Fees Order 2008 No 1052 (20 impacted fees).

At the same time as increasing fees, the Government is also proposing to widen access to the Help with Fees scheme and make it more generous. This proposal includes inflationary uplifts to the income thresholds, including the couple and child premiums, in the Help with Fees scheme, backdated to August 2016. The proposal will widen access to and increase the generosity of the Help with Fees scheme. In particular, the extended scheme will benefit women, people from black and minority ethnic backgrounds, disabled people and younger people, who all feature disproportionately among low income groups.

The proposed fee increases will raise an estimated additional net income of £11-£17 million a year for HMCTS after fee remissions, including the proposed changes to Help with Fees, are applied. This will help to ensure HMCTS continues to have the necessary funding to complete its much needed and important activities. Given the current economic uncertainty and the difficulty in forecasting rates of inflation accurately at this time, the figures included in this proposal are indicative and will be revised, based on actuals, prior to the implementation of the revised fee. Therefore, this estimated income is subject to change.

Responses are welcomed from anyone with an interest in or views on the subject covered by this consultation. The full consultation is available at: https://consult.justice.gov.uk/digital-communications/increasing-selected-court-fees-income-thresholds. Responses are required by the 17th May and can be submitted via an online survey using the link above, via email: mojfeespolicy@justice.gov.uk, or by post to: Fees Policy Team, Ministry of Justice, 102 Petty France, London SW1H 9AJ.

Any questions regarding this consultation can be addressed to the Ministry of Justice Fees Policy Team (mojfeespolicy@justice.gov.uk).

Delays In Bringing Applications in the Court of Protection

Laura SugarmanLeave a comment

The issue of delays in bringing applications on behalf of P within the Court of Protection was recently outlined in the case Cardiff & Vale University Health Board v P [2020] EWCOP 8

The focus of the case was in reference to the dental treatment for P. P was a severely autistic 17 year old with very little ability to communicate directly.

P was required to undergo a CT scan in January 2019 to ascertain if he required any dental treatment. The CT scan shown that P had sustained decay which had impacted on his wisdom teeth.

Following on from this, P’s parents observed that P began banging his head against a wall in October 2019. They believed this to be a response to the dental pain he was suffering, however P was unable to communicate this directly. As P’s behaviour deteriorated, P’s parents were concerned that P could have been suffering with concussion, or sustained a head injury such as a fractured skull as a result of him banging his head against walls.

A main issue with the case was that the application to Court in respect of P’s requirement of dental treatment was only made on 20th February 2020. In his judgement, Hayden J expressed his concerns at the delays in bringing the application. He stated:

‘This is the second time in the last few months when I have heard a case which reveals that a vulnerable person has fallen through the net the system tries to provide. Here, P has been permitted to suffer avoidably for many months. His needs, it requires to be said, have simply not been met. The philosophy of the Mental Capacity Act 2005 is to enable those who are vulnerable in consequence of incapacity to have equality of opportunity with their capacious co-evals. Here, P’s capacity, his inability to communicate his distress, led to a failure to provide him with appropriate medical treatment’.

P should not have been made to wait several months for an application to be made, particularly given the significant pain he was clearly in, and his inability to communicate the same to anyone.

 

Tips for Recoverability

Stephanie KayeLeave a comment

All COP Lawyers know that the SCCO Guideline Hourly Rates can be frustrating when trying to recover all of your costs as opposed to other areas of law in which higher rates can be charged. As a result, some believe it to be unreasonable that a Costs Officer ca reduce the costs down even further on assessment. Here are some things that we have seen helps improve the recoverability of your fees.

Using 3 minutes to arrange and make payments. I know you’re told this on every assessment you’ve had back from the SCCO but ignoring it isn’t going to make your recoverability any better. The Costs Officer isn’t going to change their mind. Arranging payments are viewed as an office overhead so its best practice for you to delegate this work to a Grade D fee earner and limit the time spent and charged for to 3 minutes. The Costs Officer is going to see the effort being made and as a result, this will help with your reputation with the Court and will improve your Bill assessment outcomes.

You, like all other COP Lawyers dislike the low guideline rates that you’re restricted to. If there are any matters of complicated work, outline this to us or your other Costs Draftsperson and request enhanced rates on that particular issue. We have found that there is a higher chance of success for an enhanced rate when it is applied specifically to a complex and difficult issue than when it is applied to the whole bill. Doing this allows the Costs Officer to see specifically what was difficult and justifies why you are requesting the additional fees. We are often proactive in applying these for you when a complex matter arises, such as jurisdictional differences, the requirement of language interpretations, abusive Clients etc.

The Costs Officer will reduce or remove a second fee earner attendance at a meeting in accordance with the decisions made within the Matter of Garylee Grimsley (December 1998). Therefore, it is incredibly important for your recovery that the dual attendance is explained and justified in your attendance note. Just a line to outline why the second person was required will do, were they the main fee earner alongside the Deputy? Did the Client or Client’s family request they be present? Was the Client abusive or dangerous? It may be allowed at a reduced rate however it is

As simple as this one may sound, keep your file in chronological order and easy to get through. The last thing you want to do is make the Costs Officers life difficult when they’re assessing your costs.

Furthermore, ensure that you accurately time record your work. We appreciate that different firms have differing levels of technology available, but this need not be the most complex and time consuming system. If you do have the option to tag your time entries, this will help all parties involved when it comes to the costing of the work. Bulk time recording will cause difficulties so avoid this as much as possible. Also, ensure that the time spent is reasonable from the outset and delegate where appropriate. However, please don’t self-edit your time because if this is later reduced on assessment you will have doubly been reduced where not necessary.

Additionally, including details of the Client’s financial position assists the Costs Officer in ensuring the work undertaken is in proportion to the level of assets held and increases the chances of your time being recovered, especially in circumstances where the Client’s assets are significant and various financial schedules and reviews are required. See https://clarionlegalcosts.com/2015/06/09/how-valuable-is-the-protected-partys-estate/ for further information on this point.

I hope this helps and if you have any further suggestions or questions I would be happy to hear and discuss them further at bridie.sanderson@clarionsolicitors.com

 What do Court of Protection Costs draftsmen actually do?

Stephanie KayeLeave a comment

The legal world of costs is not the biggest or most well-known, and it’s often the case that many lawyers aren’t sure what Draftsmen actually do. This is especially true if the costs are related to the Court of Protection, as it’s another area that isn’t particularly familiar to many, with some potentially not even knowing which costs are assessed, or how.

The previous blog in this series focused on the Bill of Costs and the process of claiming your costs and ultimately getting paid. This blog will instead breakdown the process of what goes into a Bill of Costs within the Court of Protection world and how the Costs Draftsmen – and women – here at Clarion can help.

Process for creating a Bill of Costs

  1. Arranging the file

Once we receive a file from one of our clients, it’s opened within our case management system and we assess how long the Bill will take to draft and which one of the Draftsmen would be best suited to do it. We review various points including: the specific needs of the client, the amount of work in progress (WIP) on the file received, the complexities involved, and the workload of the Draftsmen involved to determine who in our team is best placed to prepare the Bill of Costs. There are 10 of us who deal with Court of Protection costs on a daily basis.

  1. Drafting the Bill

Thereafter, once the file is allocated, our job is to match up entries on the file and billing ledger and cost the file as appropriate. At Clarion, we review the file of papers on a page by page basis, for completeness. The costs are calculated electronically to ensure absolute accuracy and we will make note of any issues identified, to be raised with the client. We are fully aware of the restrictions and court requirements as to what is and is not recoverable in Court of Protection cases. As a result, we will use our experience and discretion to put the bill of costs together in a way that the Court will be happy with, which is fundamental for our clients’ reputations.

  1. Reviewing the file and the Bill of Costs

Once the whole file is efficiently costed, the Draftsman reviews the file and ledger once more and notes any missing entries on the ledger that are not evidenced in the file. We also check if there are things within the file that could be included in the Bill of Costs, that the fee earner didn’t know could be recovered. If there is anything missing from the file, the client is informed, giving them the opportunity to provide the documents required, to ensure that a complete log of evidence is submitted to the Court.

  1. Collating and arranging the Bill of Costs and bundle

Once all the information is present and the Bill of Costs complete, Clarion prepares the Form N258B, which is a request for detailed assessment of the costs, if they are payable out of a fund. We also draft a comprehensive letter of advice, informing the client of possible reductions and guidance to improve costs recovery going forward. All documents are returned to the client, enabling them to easily submit them to the Court for assessment.

  1. The assessment

The matter is thereafter assessed by the SCCO on the Standard Basis, and Clarion will consider the outcome of the assessment, to determine if it is reasonable or not. Clarion can also assist with requests for reassessment if the outcome is not as expected.

If you would like further information about this process, then please do not hesitate to get in contact.

You can also take advantage of our free telephone advice service – available outside of office hours – by calling 07764 501252

Unusual Granting of an Order to Prevent the Protected Party from knowing the full details of his Personal Injury Settlement following an application made by his Professional Deputy.

Stephanie KayeLeave a comment

In this personal injury case, the judge had to grapple with an unexpected question – should a Deputy, appointed to manage the personal injury payment made to a brain-injured claimant, be allowed to not tell the claimant the exact amount that was awarded to him?

The case of EXB v FDZ

The case of EXB v FDZ (2018) was very unusual in that it involved an application by the Protected Party’s professional Deputy, and his mother as Litigation Friend, to prevent the Protected Party from knowing the full details of his personal injury settlement, which was deemed to be in his best interests.

This was a complex matter, as the Court recognised that withholding such information inadvertently affected the Protected Party’s rights. Judge Foskett explained in his judgement that he had never come across this issue before and he called upon assistance from Ms. Butler-Cole as a ‘friend of the Court’.

The Protected Party

The Protected Party sustained orthopaedic injuries, alongside a severe brain injury following a road traffic accident. The Protected Party was a backseat passenger in a car driven by the First Defendant. The Protected Party was not wearing a seatbelt and his damages were reduced accordingly, following an admission of contributory negligence.

Why was it in the best interests of the Protected Party to withhold settlement info?

The applicants submitted evidence from both themselves and professionals which detailed the reasons as to why it was in the Protected Party’s best interests to withhold the settlement information.

The Protected Party’s neuropsychologist stated that “Such knowledge would translate and impact upon his behaviour”. It was believed that the Protected Party would become fixated by the sum of money, that it would lead to him being extremely vulnerable and placed into a situation where he was likely to be financially exploited. Interestingly, the Protected Party himself expressed to his Deputy and the Court that he would be better off not knowing the sum; however, he also stated that he was conned into making such a statement. Following the accident, the Protected Party was very impulsive, and he often became very anxious when it came to money, struggling to budget and often living beyond his means.

The Judge gave careful consideration to the evidence submitted, as well as reviewing the relevant legislation, such as the Mental Capacity Act 2005 and the UN Convention on the Rights of Persons with Disabilities (CRPD). Following this, the Judge held that the Protected Party lacked the relevant decision-making capacity, finding that it was in the Protected Party’s best interests not to be told the value of the reward. The Judge also considered whether it was within the scope of a normal Deputy Order not to reveal the sum; however, the Deputy argued that it would make the Deputy’s life more difficult if the Protected Party believed that he was personally withholding the information and it was considered more appropriate for the Deputy to state that the Court prevented him from doing so.

Costs of the application

The next issue that arose was in respect of the costs of the application. The Claimant sought the costs of the application to be paid by the Third and Fourth Defendants of the Personal Injury claim, as their tort had necessitated. The Third and Fourth Defendants objected to paying the costs. Their defence stated that “they should not be responsible for the costs because all of the issues between them and the Claimant were concluded by the Settlement which was approved in April 2018” and that this particular issue was a ‘solicitor/own client’ dispute. Within the remit of the initial Personal Injury claim, there was no claim for costs attributable to this issue within the Schedule of Loss and there was also the fear that there may be an “open-ended commitment to pay the costs associated with any repeat applications”.

As the issue had been dealt with under the Court of Protection, it was necessary to apply the Court of Protection costs rules. The general rule being that where the issue concerns financial matters, the costs of all parties are to be borne from the Protected Party’s estate (Rule 19.2). The Court does have a broad discretion to depart from the general rule, if circumstances made a different order more appropriate (Rule 19.5). In this case, the Third and Fourth Defendants had not been made formal parties to the application, but they had been provided with an opportunity to make representations regarding the Costs Order being sought.

Judge Foskett held that the costs were to be borne by the relevant Defendants, as the need to make the application arose directly from their actions following the injury caused to the Protected Party, therefore departing from the general rule.

It will be interesting to see whether there will be any similar applications and what the outcomes will be. The Judge has invited the appropriate bodies to consider these matters and decide whether a consultation on this issue will be required.

Increase in Court of Protection Fixed Fees

Stephanie KayeLeave a comment

Fixed Fees in the Court of Protection have increased, further to amendments to Practice Direction (19)B.

There have not been any significant amendments to the Court of Protection Rules which govern the practice and procedure in the Court of Protection since their introduction in 2007. In many people’s opinion, the update is long overdue.

The amendments have been made to strengthen the Court of Protection’s powers to deal with the current challenges, particularly the increase in caseloads and complexity of cases. The increase to Fixed Fees may encourage some financial Deputy’s to follow this route instead of having their costs assessed, which would ultimately free up some of the Senior Courts Cost Office’s capacity to assess bills and bring clarity and consistency to the costs assessment process, as Court of Protection cases continue to rise.

Please see below the revised fixed fees in the Court of Protection:

  Original Fixed Fees (plus VAT) Amended Fixed Fees (plus VAT)
Appointment of Financial and Property Deputy £850.00 £950.00
Appointment of Health and Welfare Deputy £500.00 £555.00
Appointment of a Trustee £385.00 £500.00
First General Management Year £1,500.00 £1,670.00
General Management for the Second Management and Subsequent management years £1,185.00 £1,320.00
Preparation of the Deputyship Report £235.00 £265.00
Preparation of a Basic HMRC income tax return £235.00 £250.00
Preparation of a Complex HMRC income tax return (NEW) N/A £600.00
Conveyancing Minimum sum
of £350 and a maximum sum of £1,500, plus disbursements.		 Minimum sum of £400.00 and a maximum sum of £1,670.00, plus VAT and disbursements.
Interim Payments Bill up to 60% of the WIP incurred per annum (20% per quarter). Bill up to 75% or the WIP incurred per annum (25% per quarter).

If you have any queries, please do not hesitate to contact Georgia Clarke or the team at COPCosts@clarionsolicitors.com