This article looks at whether Deprivation of Liberty Safeguardings (DOLS) can be applied to cases where the Protected Party resided within their own home and where a care regime had been established. A full judgment can be found by clicking on this link: Staffordshire County Council -v- SRK, RK, Irwin Mitchell Trust Corporation and the Secretary of State for Justice
Tag: Deputy
Litigation costs in Court of Protection bills – are these recoverable?
It is extremely common for Deputies to be involved in ongoing litigation claims for Protected Parties. Deputies often become involved in interim payment applications and are usually asked to disclose details of the Protected Party’s affairs to the litigation solicitor to assist with the Schedule of Loss and other documentation. The main question that needs to be answered however is whether these costs can be claimed within the general management bill of costs.
Unfortunately, the answer is no…
Master Haworth considered a bill of costs where the Deputy had incurred costs through communications with the litigation solicitor to outline the Protected Party’s affairs to assist with an ongoing litigation claim. Master Haworth disallowed the costs that related to the litigation claim and he stated that “where the Deputy is being asked to provide information and/or schedules and/or documentation to support an interim payment application in an ongoing litigation these are not general management charges”.
Master Haworth directed the Deputy to withdraw their bill of costs and to re-submit a new bill of costs which did not include the litigation costs to allow him to solely assess the general management costs that had been incurred.
It is advisable that the Deputy’s costs which relate to the Protected Party’s litigation claim are not included within general management bills. Costs which relate to the litigation claim should be recovered within the litigation bill of costs. The Deputy should therefore outline their costs to the litigation solicitor to ensure that the costs are remunerated correctly.
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.
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.
Welfare Costs within the Court of Protection
Rule 157 of the Court of Protection Rules 2007 states that “where the proceedings concern P’s personal welfare, the general rule is that there will be no order as to costs of the proceedings or that part of the proceedings that concerns P’s personal welfare”. Please note however there are exceptions to this rule.
If the general rule is applied, each party involved in Court of Protection proceedings which concern the P’s personal welfare are liable for their own costs. On the other hand, Rule 159 states that in some circumstances, the Court may depart from the general rule. Before an Order can be made, the Court of Protection will take into account these variables:
- the conduct of the parties;
- whether the party has succeeded on part of their case, even if they have not been wholly successful; and
- the role of any public body involved in the proceedings.
In terms of the conduct of the parties, the Court of Protection will consider:
- conduct before and during the court proceedings;
- whether it was reasonable for a party to raise, pursue or contest a particular issue;
- the manner in which a party has made or responded to an application or a particular issue;
- whether a party who has succeeded in their application or their response to an application exaggerated any matter contained in the application or response.
It is important to note that even if one or more of the above variables are applicable to a case, the parties should not expect the Court to make an Order and therefore they should be able to bear their own costs.
Welfare Deputies
Deputies can be appointed to make decisions in respect of P’s personal welfare however these are only applicable to extreme cases. Paragraph 8.38 of the Code of Practice states that a “Deputy for personal welfare decisions will only be required in the most difficult cases where important necessary actions cannot be carried out without the Court’s authority, or there is no other way of settling the matter in the best interests of the person who lacks the capacity to make particular welfare decisions”.
Before a Welfare Deputy is appointed, the Court will consider the evidence and make decisions in relation to the following:
- Deciding where P should reside;
- Deciding what contact, if any, P should have with any specified person;
- Making an Order prohibiting a named person from having contact with P;
- Giving or refusing consent to the carrying out or continuation of a treatment by a person providing healthcare for P;
- Giving a direction that a person responsible for P’s healthcare allows a different person to take over that responsibility;
- Deciding whether P has the capacity to marry and the capacity to have sexual relations.
Where a Welfare Deputy is appointed, they are entitled to recover their costs from P’s estate on the basis that there is provision to do so within the Order. Practice Direction B (Part 19) to the Court of Protection Rules 2007 states “where the Court appoints a professional Deputy for personal welfare, the Deputy may take an annual management fee not exceeding 2.5% of P’s net assets on the anniversary of the Court Order appointing the professional as Deputy for personal up to a maximum of £500”.
If you require any further advice or assistance in relation to your Court of Protection costs, please do not hesitate to contact the Clarion COP Costs team on COPCosts@clarionsolicitors.com or 0113 246 0622.