Court of Protection Costs – What happens after the death of P?

Upon the death of the Protected Party, the Deputy’s authority under the First General Order seizes with immediate effect. Once the matter is transferred to the Executors of the Estate, the Deputy can agree their costs directly without a need for assessment, if possible, which will generally save the Protected Party money overall, without the need for the assessment process. If this is not possible, it may be necessary to apply to the Court for the costs to be assessed.

The interim work and the costs of the Deputy bringing the matter to a conclusion following the death of the Protected Party have been questioned over the years, as there has been very little guidance on this issue. In many cases, there is reasonable and necessary work involved in preparing the case for the Executor to thereafter deal with the Estate, however, what is a reasonable sum for this work?

Following correspondence with the Senior Courts Costs Office (SCCO), the following change has been made to the assessment procedure with immediate effect. The SCCO may now allow ‘reasonable costs’ (post death of the Protected Party) in order that the Deputy can finalise his/her involvement in the matter. The SCCO have indicated that such costs should not be expected to exceed £1,500.00 +VAT.

As a result, where it appears that the post-death profit costs exceed £1,500.00 +VAT, the Deputy will require the authority to assess that part of the Bill of Costs. Costs below this amount are likely to be deemed reasonable on assessment but are, of course, subject to the usual assessment process and will be allowed based on what was reasonable, necessary and proportionate in the circumstances.

If you have any queries relating to post-death costs in Court of Protection cases, please do not hesitate to contact Stephanie Kaye.

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Costs after Death in the Court of Protection

The Deputy’s authority to recover their costs after the Protected Party’s death can be a grey area. In some cases, the Deputy will have authority to subject their costs to detailed assessment however in most incidents the Protected Party’s estate will be in probate whereby the Deputy’s costs will be agreed with the Executors of the estate.

Rule 165 under Part 19 (Costs) to the Court of Protection Rules 2007 states that the Deputy’s costs can be remunerated where “an order or direction that costs incurred during the Protected Party’s lifetime be paid out of or charged on his estate may be made within 6 years after the Protected Party’s death.” If there is no Order as to costs then the Deputy cannot be remunerated through detailed assessment.

When the Protected Party’s estate is dealt with by the Executors, two approaches can be adopted. If the Executors do not contest the Deputy’s costs, the Deputy will be invited to raise a final invoice which will then be settled from the Protected Party’s funds once the Grant of Probate has been drawn. Where the Deputy’s costs are disputed, the Executors can elect for the Deputy’s costs to be subject to detailed assessment.

In either of the above situations, the Deputy’s authority to administrate the Protected Party’s affairs will be discharged on the Protected Party’s death unless an Order is made to extend the Deputy’s powers.

If you require any further advice or assistance in relation to your Court of Protection costs, please do not hesitate to contact the Clarion Costs Team on COPCosts@clarionsolicitors.com or 0113 246 0622.