OPG Deputy Standards

Sometimes as drafters, we can find ourselves hooked within the world of COP costs and provide deputies with many questions and solutions with maximising their costs. During February 2023, I found myself revisiting the OPG deputy standards, following the updates published by the OPG on 13 February 2023, and refreshing myself of the duties and obligations of a deputy, this time, asking myself many questions and considering the solutions! In case anyone missed this publication, please refer to OPG Deputy Standards – GOV.UK (www.gov.uk).

Much of the content appears to be the same or very similar, however, there were several aspects, which were more focused and detailed on what clearly needs to be expected from different types of deputies, be they Public Authority, lay or professional, appointed by the Court.

It would be impractical for me to go through and discuss all categories of the deputy standards, but what I do think would be quite useful is to discuss which categories may have particular impacts/risks at assessment;

Standard 1: Deputyship Obligations – 1h. Considering whether a deputyship is still required

This is a very interesting and fine point to consider. During my time as a draftsman, the “proportionality” rule has had its own take over the years, but most recently, has played significance when P has limited assets. From various assessments, it has been found certain bills of costs being submitted were considered too high and the sum in question, would significantly deplete P’s funds. On such assessments, a much lower amount of costs was allowed by the court and therefore, a significant amount of the deputy’s costs were reduced.

However, what I feel needs to be carefully considered on such reductions, is how the deputy has appropriately carried out their obligations, the duty of care to P and the bearing this has had on costs. I feel it would be unfair for the deputies to be penalised for such reductions, if there continues to be such a demand and need to effectively administer P’s affairs.

There are very fine margins with these types of scenarios. I am also very appreciative of each party’s views on the matter, so the question is what should be applied as a reasonable and best outcome on the case? It is difficult to really answer this, as each case has their own complexities, but first and foremost, justification and detailing what has been carried should be highlighted for the court’s attention.

I feel it is really important to prepare for this scenario, when the issue does arise. I have seen many of these reductions applied, and perhaps the best line of advice I could provide is to understand what could happen if the deputyship continued year in, year out with limited funds. There are several tasks that could be carried out such as undertaking future projections, highlighting when this situation could arise.   The advice here is to plan ahead.

Standard 2: Best interest decision making

I have quickly moved onto the next standard. This point needs no introduction, and is one area of the deputy’s obligations to effectively carry out all functions associated with managing P’s property and financial affairs. Best interest decisions need to be carried out on nearly everything, including when paying a bill.

However, time and time again, we tend to see quite a lot of reductions made to the deputy’s work with considering and approving payments in the best interests of P. So why is this work being reduced, when it is stated, as part of the obligations as a deputy, for such issues to be considered?

The case of Connor Kirby has certainly played a huge part in what is considered appropriately claimed and recovered within costs assessments. There is the argument that, yes routine best interest decisions should be formed under different areas of work, but not all.

I feel it is essential for deputies to carry out these decision-making activities and each decision will carry its own weight.  It is essential, when recording such decisions, that sufficient detail is provided to explain the nature and importance of these tasks.  I am sure that there are occasions where more complex, non-routine decisions are being made by deputies and a detailed note of the nature of the decision being made, along with any complexities, will help to ensure this work is recovered.

Standard 5: Financial record keeping – 5a. Keeping financial records up to date

This particular point makes reference to complying with the Solicitors Regulation Authority’s (SRA) requirements. These requirements relate to ensuring full financial records and accounting systems are in place to ensure the security and appropriate management of P’s finances.

There are several accounting systems in place, and all of them are different for different deputies. Some of these accounts involve monthly checks on accounts by the deputies as part of the SRA’s requirements. The benefit of such is huge for P. There is the added security that budgets are in place, all payments have been made, minimise the need for deputy’s input when managing payments, ensuring minimal discrepancies and the list goes on.

However, I have seen such SRA requirements being disallowed/reduced by the court. It is difficult to understand why this is not being allowed, given the focus on the standards written.  However, it appears that some elements of this work are considered to constitute a deputy’s “overheads” associated with running a firm and practicing in the Court of Protection area.

I would consider such work is recoverable, but perhaps if the work is involving more than a simple “check and sign”, I would certainly ensure this is detailed to the court. The work itself really does focus on the overall picture of P’s finances and ensure the routine tasks can be continue to be managed by lower grade fee earners, which is a major incentive to P!

There are many of aspects of the deputy standards I could talk about, along with other key areas I have found on costs assessments. If this is of interest, please do get in touch as I would be more than happy to address.