Court of Protection - Where do my costs go?

In this article, I will be looking at some further pitfalls that arise within Court of Protection cases when it comes to dealing with costs and provisional assessments at the Senior Courts Costs Office (SCCO).  This piece will be of interest to both Court of Protection Deputies and those assisting professional deputies alike.

In previous articles, I have often looked into the minutiae of the assessment and have sought to provide tips on how to avoid certain pitfalls. In this article, I am going to take a look at further pitfalls from a higher perspective, advise on the issues and how you can avoid them to ensure you get paid for the work you do.

As you might be aware, here at A & M Bacon our team specialises in the recovery of costs for Court of Protection deputies. However, the vast majority of the cases we deal with are in relation to property and affairs deputyships. In most cases, the costs of this input are payable from P’s estate (COP Rule 19.2 refers).

However, one must always remember that if you are appointed property and affairs deputy, you do not have authority to undertake health and welfare work on behalf of the Protected Party (P).  Further, COP Rule 19.3 provides “Where the proceedings concern P’s personal welfare the general rule is that there will be no order as to the costs of the proceedings, or of that part of the proceedings that concerns P’s welfare.”

It should be noted that COP Rule 19.5 provides further guidance on how and when the Court of Protection will be able to depart from these two rules cited above.

It is always difficult to distinguish between what work may relate to property and affairs and that which relates to health and welfare. For example, where a property and affairs deputy is required to attend a best interests meeting regarding where P should reside, information will often be required into the costs of each option and the deputy’s input is required to ensure any decisions made will be affordable by P, particularly important if P is self-funding. We have also seen cases where the property and affairs deputy is obliged to obtain costs of certain options, for example, how much funds are required to enable P to remain at home with home care services provided?

There is a direct cross over here between the health and welfare side and property and finances. It is important to remember to review your deputyship order and to consider the authority you have under this. It may be necessary to make an application to the Court of Protection under Rule 19.5 for authority to undertake the health and welfare elements of the work and to seek authority for your costs to be paid from P’s estate and assessed by the Court of Protection section down at the SCCO.

Again, a common issue we can see, particularly when drafting annual general management bills, is the inclusion of costs relating to a Statutory Will application.

It is difficult for the court to assess such costs within a general management bill and the SCCO will require sight of the order permitting such costs to be assessed and subsequently paid from P’s estate. If no order has yet been obtained, the SCCO will not be able to issue the final costs certificate until they have had sight of the relevant order (to execute the Statutory Will).

It is also worthwhile bearing in mind that invariably, following the assessment of Statutory Will application costs, the costs officer will usually order the bill be served on “interested parties”.  This can become somewhat more onerous if one has to redact their bill to only serve details of the Statutory Will application costs and may lead to further queries or points of dispute arising if the interested party is not convinced details of all costs have been provided.

It is much more efficient, in my view at least, to separate these costs. A separate bill of costs should be prepared, relating solely to the Statutory Will application. A separate file should also be opened to assist in this process.

So, this then raises a further question; when would I need to open a new file for a Statutory Will application? In my experience, a Statutory Will application is considered long before any substantive work is undertaken. Not least, you have to determine whether or not P has testamentary capacity.  The outcome will determine whether you can take instructions from P on their Will, or whether you will need to pursue a Statutory Will application.

My view is that preliminary work in this regard should be included within the general management bill. You may wish to separate such work from the outset (i.e., as soon as you start to consider whether or not a Statutory Will application is required). However, we have been successful in claiming these costs within general management bills, up to the point where it is determined that P lacks testamentary capacity, and a Statutory Will application is required. It becomes more difficult to argue, thereafter that the deputy or applicant did not know the position in relation to P’s capacity and whether or not an application would be progressed.

If your client is found to have testamentary capacity, in our experience, the time taken in dealing with P’s Will can be recovered as part of the general management of P’s affairs. It is only when a Statutory Will application is required that the costs should be separated

Again, this is another one of those issues where it is difficult to determine the line; where does general management work end and litigation work begin (I call it litigation support work)?

I feel it would be useful to pause at this point and advise this is work undertaken by the deputy (or their team) in providing the litigator with information relating to P’s ongoing expenditure and assisting with maximising the claim (or indeed an interim payment).

It was a number of years ago since Master Haworth determined that such costs should be payable from the litigation claim, as opposed to being included within the general management work relating to P’s affairs. I must admit I can see the reasoning behind this; whilst these costs, when included in the litigation bill, become subject to the scrutiny of the paying party (payable on an inter parties basis), such costs are paid by the defendant at the conclusion of the litigation, in addition to any compensation agreed on P’s behalf. This is clearly in P’s best interests.

My advice to clients is always the same; such work should be separated and recorded on a new file.  Once the litigation has been concluded, these costs can be detailed within the litigation bill.

So again, similar to the two issues detailed above, the question remains; what constitutes general management work and what constitutes litigation support work?

My view is that it is worthwhile considering why you are undertaking the work. If you have been asked by the litigator to provide a schedule of payments made to the care agency (just for example), in support of a further interim payment, this is clearly to maximise and assist with the claim.  Similarly, if a deputy is asked to provide a detailed schedule or forecast of deputyship costs, this relates to a specific head of claim and serves to progress the litigation and maximise the claim. This should, therefore, be recorded on the litigation support file.

By contrast, if a deputy is liaising with the litigator following a request from P or their family for a certain item recommended or requested, as to the recoverability of said item within the ongoing litigation, this falls, in my view, under general management work. The deputy is obtaining information required to make a decision as to whether or not that item should be procured.

I do hope the information provided here will be of assistance to practitioners. As with all the examples above, these issues are not always clear cut. I am always happy to discuss queries that arise from practitioners during the course of your day-to-day work, and this is no different. Should you be unsure as to whether you need to open a new file, please do feel free to call me to get in touch and discuss your query.

You can read the latest Partners In Costs Magazine and Paul’s feature on pages 22 & 23

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