Court Of Protection Flashcards
Background
S.45 MCA 2005 created Court of Protection, which is
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Office of the Public Guardian (‘OPG’) - responsible under the MCA for s
Background
S.45 MCA 2005 created Court of Protection
-Specialist court for all issues relating to people who lack capacity – Protected Party (‘P’).
- A Higher Court
- Can delegate authority to another person e.g. A Deputy (lay or professional) to deal with 1) Property & Financial Affairs and 2) Health & Welfare
Office of the Public Guardian (‘OPG’) - responsible under the MCA for supervising deputies, keeping register of Deputies, LPA’s and EPAs, investigating complaints about Deputies and Attorneys
Rules re Costs
Court of Protection Rules 2017 – Costs specific Rules contained in
supplemented by PDs –
Rules re Costs
Court of Protection Rules 2017 – Costs specific Rules contained in Part 19 - Rules 19.1-19.14
Practice Direction 19b and 24b– supplements COP Rules 2017
Also, “OPG Good Practice Guide 2016 – Professional Deputy Costs”
Orders and directions as to costs
- All orders as to costs are at the discretion of the Court of Protection
- There are 3x methods of quantifying costs:
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PD19b provides………
Orders and directions as to costs
- All orders as to costs are at the discretion of the Court of Protection
- There are 3x methods of quantifying costs:
* Agreed costs – not generally available. General rule is must be assessed unless fixed costs available. Potentially, can agree outstanding costs with administrators of an estate where P has died, or with P if he regains capacity – PD24b
* Fixed costs – as set out in PD19b (recently updated 01/04/24)
- primarily applies to solicitors and office holders of public authorities appointed to act as Deputy for P.
- They only apply where professional deputy is entitled to be paid out of P’s estate but not where inter partes
- Order appointing Deputy will specify if fixed costs and/or detailed assessment applies. If only specifies detailed assessment, can elect to take fixed costs instead and vice versa. Para 12 In all categories of work, solicitor deputies can, if prefer, apply for assessment of their costs.
- There are Fixed fees for 6x categories of work, inter alia, relating to Cat 1 Deputyship Application
Cat 2 Applications under the Trustee Act or S.20 TOLATA,
Cat 3 for 1st year General Management and for 2nd and subsequent years (Note: If P’s assets below £16k (now increased to £20,300 from 01/04/24) can only take 4.5% of p’s net assets for the annual general management fee)
Cat 4 Professional Deputy fees for Health & Welfare,
Cat 5 Prepare Annual Report (OPG102)
Cat 6 Tax Returns
* Summary or Detailed Assessment
Assessment of Costs
Basis – (Rule 19.10)
COP Rules 2017 – Costs specific Rules contained in Part 19 Rules 19.1-19.14
Rule 19.1 – defines
Rule 19.2 – GR1
Rule 19.3 – GR2
Rule 19.4 – Apportion
Rule 19.5 – Depart
Hillingdon v S Neary & M Neary [2011] No exceptional or atypical circs, depends on individual cases and decision provides useful examples
GH, Re (Mastectomy: Best Interests Costs) (2023) – Local authority ordered to pay costs due to the degree of their unreasonableness and extent of delay of issue and impact on this on P and official solicitor
Rule 19.6 – modifications
Rule 19.6(4) –prevails
Rule 19.7 – DA place
Rule 19.8 - 2 or more
Rule 19.12 – non-parties
Assessment of Costs
Basis – standard or indemnity. Since 01/04/05, usually standard unless ordered otherwise.
COP Rules 2017 – Costs specific Rules contained in Part 19 Rules 19.1-19.14
Rule 19.1 – defines relevant terms
Rule 19.2 – Property & Affairs - General Rule - shall be paid by P or charged to P’s estate
Rule 19.3 – Personal Welfare – General Rule - no order as to the costs of the proceedings, or of that part of the proceedings that concerns P’s personal welfare.
Rule 19.4 – Apportioning Costs – General Rule - Where the proceedings concern both property and affairs and personal welfare the court, in so far as practicable, shall apportion the costs as between the respective issues.
Rule 19.5 – Court May Depart from General Rules 19.2-19.4 - court will have regard to all the circumstances including (a)the conduct of the parties; (b)whether a party has succeeded on part of that party’s case, even if not wholly successful; and (c)the role of any public body involved in the proceedings.
Hillingdon v S Neary & M Neary [2011] No exceptional or atypical circs, depends on individual cases and decision provides useful examples
WBC v CP & Others [2012] and Cheshire West & Cheshire Council v P & M [2011] - In cases where a party (usually a local authority or health body) has acted illegally, with delay, a costs order may be made against them
Somerset County Council v MK (2015) – example of when ordered costs to be payable other than from P’s funds – party failed in duty of care towards P and costs made against them
GH, Re (Mastectomy: Best Interests Costs) (2023) – Local authority ordered to pay costs due to the degree of their unreasonableness and extent of delay of issue and impact on this on P and official solicitor
Rule 19.6 – COP Rules governs procedure but CPR may be applied with modifications. Also sets out no. of CPR rules that do not apply inc. Fixed Costs CPR PD45, Costs Budgets CPR PD 44, Court cannot make an order at any stage, contractual costs and venue for DA proceedings.
Rule 19.6(4) – where difference in definition between CPR and Rule 19.1, Rule 19.1 prevails
Rule 19.7 – Detailed Assessment of Costs – to take place in High Court (SCCO), there is a court fee payable and the amount payable by P is the amount the Court certifies as payable
Rule 19.8 - Where two or more persons having the same interest in relation to a matter act in relation to the proceedings by separate legal representatives, they shall not be permitted more than one set of costs of the representation unless and to the extent that the court certifies that the circumstances justify separate representation.
Rule 19.10 – Says Procedure for Assessing Costs can be summary or detailed
Rule 19.11 – Costs Following P’s Death - 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.
Rule 19.12 – Costs Orders can be made in favour of or against non-parties
Professional Deputies – Property & Financial Affairs
- authority for assessment/yearly
- Best practices is to submit bills
- Annual General Management -
- OPG 102 &105
- Must state in bill (IP, FC not)
- Interim bill
- Any work not relating to P&F
- Disbursements
Professional Deputies – Property & Financial Affairs
- The Deputyship Order usually gives authority for assessment of the Deputies Annual General Management costs.
- Best practices is to submit bills annually on anniversary of date of Deputyship Order. (Application bill goes up to date of Entry (not grant), therefore 1st year’s bill is shorter as goes from date of entry to 1st anniversary to date of grant. Year 2 onwards from date of grant anniversary to date of grant anniversary)
- Annual General Management - Must also provide copy OPG102 report containing the OPG105 costs estimate for the relevant period of the Bill. If Bill exceeds 20% over the OPG105 estimate, should submit cover letter with the Bill explaining reasons why.
- Note: OPG102 reports done annually to report property and financial decisions to OPG. OPG needs to ensure P’s assets being managed, and funds spent, appropriately. This is part of their supervision of Deputies (lay and professional). The OPG105 is the costs estimate for the following year, so also ensuring Prof Deputies not incurring unreasonable costs. Best practice would be to update OPG during the year if likely to go over the estimate, and provide new estimate.
- Must state in bill the amount of P’s assets - this is for proportionality purposes
- As per PD19b, Prof Deputies can take 3x quarterly interim payments totalling up to 75% of WIP in a year (as per PD 19b updated April 2017 and then recently changed as per updated PD19b 01/04/24). These interim payments must be reported on the certification page of the Bill.
- Must state in bill that fixed costs have not been taken.
- If any work not relating to property and financial affairs included, need to provide explanation for this in bill and arguments why should be allowed.
- Usually no disbursements claimed in a Deputy’s bill (as reported in OPG102 report instead) save travel costs to annual meeting or other attendances.
Procedure for COP Detailed Assessment
- efiling and provisional
- Format of DA Bills
- < £3k (excluding vat) Short Form bill.
- Once assessed, Notice of PA, with copy of annotated bill showing CO’s reductions and comments.
- Response 14 days. Persons with financial interest 21 days
- No dispute, apply for FCC
- If dispute, informal review by letter setting out disputes. Costs Officer will write back with decision.
- If still disputed, an Oral hearing by Costs Judge.
Procedure for COP Detailed Assessment
- Submit bill (via e-filing) with Form N258b (if payable out of fund) for provisional assessment
- Format of DA Bills – as per PD47 – Must include summary (draw attention to any important issues/justification for costs), heads of costs, breakdown etc
DA bills usually 4 column, but since around end 2022 the electronic COP E-bill can be used (optional).
If Profit Costs less than £3k (excluding vat) can use a Short Form bill.
- Once assessed, Notice of Provisional Assessment received with copy of annotated bill showing Costs Officers reductions and comments.
- Deputy has 14 days to respond. But, persons with financial interest such as lay co-deputy or executor, must be served with the provisionally assessed bill and given 21 days to respond.- This is not written down anywhere but Costs Officers always mark it on the bill when relevant.
- If no disputes to Bill, apply for Final Costs Certificate.
- If dispute, usually an informal review by Costs Officer in first instance, upon receipt of letter setting out disputes. Costs Officer will write back with decision.
- If still disputed, an Oral hearing will take place (often by phone) by Costs Judge.
If P dies before assessment complete
- Advise court/stayed/serve on IPs
Note: position as to outstanding assessment of costs and post death costs has recently changed following Note re Post Death Costs issued by SCCO on 13/05/24.
Non-Solicitor Deputy
Cannot
If P dies before assessment complete
- Advise court and assessment will be stayed pending final directions from COP. Assessed bill will then need to be served upon personal representatives/executors as they have financial interest. They have 21 days to respond b4 apply for FCC.
Note: position as to outstanding assessment of costs and post death costs has recently changed following Note re Post Death Costs issued by SCCO on 13/05/24.
Non-Solicitor Deputy
Cannot employ a solicitor to undertake work without permission of the Court. May not recover costs if does.
Case Law re common costs reductions of Prof Deputy Bills - TTLCY
Trudy Samler [2001] –
Tina Jane Cloughton (1999) –
Leighanne Radcliffe (2004) –
Connor Kirby & Others (2013) -
Yazid Yahiaoui (2014) –
Also OPG Good Practice Guide 2016 – extra
Case Law re common costs reductions of Prof Deputy Bills
Trudy Samler [2001] – Excessive Attendances. One visit per year. Up to Deputy to keep contact with P, family, case manager etc to minimum even if excessive contact caused by them.
Tina Jane Cloughton (1999) – Deputy should delegate appropriate work to lower grades
Leighanne Radcliffe (2004) – enclosure letters at 3 minutes
Smith & Others (2007) - Guideline Hourly Rates Apply.
Connor Kirby & Others (2013) - Payments made by BACS/CHAPS will only be allowed at grade D at 3 minutes
Yazid Yahiaoui (2014) – Blended or enhanced rates may be appropriate
Also OPG Good Practice Guide 2016 – Professional Deputy Costs contains some guidance e.g. considering bank statements should be at Grade D
