A Review Court of Protection Costs & The Code Of Practice
Professional Deputy Costs
The OPG has had in place its good practice guidance (in place since July 2016) that it prepared with the Senior Courts Costs office. The guidance was prepared to assist professional deputies to explain what can be claimed for in general management bills. It should also be read in conjunction with the relevant Civil Procedure Rules, the COP Practice Direction PD19B, section 23 of the SCCO Guide October 2013, the Mental Capacity Act Code of Conduct and the OPG professional deputy standards. Adrian Hawley, Head of Court of Protection Costs, reports.
The OPG guidance can be found here.
It sets out how the SCCO will undertake the assessment in general management of a deputyship. In reality, deputies should take into account this guidance before embarking on the work rather than recapping at the end of the year.
Best practice tools now suggest the following is adhered to:
- File notes must be included in the file of papers – without a note that piece of work will be disallowed.
- Litigation costs are not to be included in the general management work – remember in 2014 Master Haworth in the case of Hewitt and Dowman stated litigation costs should be claimed from the opponent in the litigation.
- Administrative work should be charged at the lowest grade of fee earner.
- Hourly rates as set out in the SCCO guidelines will be applied but the case of Kirby & Others in 2013 does say in exceptional matters a higher rate will be allowed.
- There can be only one home visit a year to the Protected Party. If P has particular issues then you can always ask the Court of Protection visitor to note this to justify if more regular contact is required.
- For enclosure letters it is always a 3 minute unit letter.
- For paying bills, BACS or sorting out a cheque payment it is a three minute unit.
The Mental Capacity Act 2005 Code of Practice
A deputy appointed by the Court of Protection does not have a legal duty to comply with the Code but should take it into account as guidance and be expected to be able to provide good reasons as to why they have departed from it. However, a deputy must have regard to the Code when it comes to decision making on behalf of the Protected Party.
The Code goes on to point out that a person acting in a professional capacity should also have regard to guidance and this would include a solicitor acting in claim for injury acting for P.
Chapter 8 covers the section for professional deputies in the Code. This sets out the powers of the Court of Protection and what the deputy MUST comply with. These are:
- To make sure they only make those decisions set out in the order of the Court of Protection;
- To make sure they follow the Mental Capacity Act’s statutory principles;
- To make decisions in the best interests of the person they are acting for;
- Have regard to the guidance in the Code of Practice, and;
- To fulfil their duties towards the person especially the duty of care and fiduciary duties.
The Code sets out: how an application can be made to the Court of Protection; what powers the Court of Protection has; what decisions the Court can make; the specific rules for appointing deputies and when one might need to be appointed; who can be that deputy; the restrictions of the deputy and responsibilities; and what the Act imposes.
The Code also confirms the deputy is accountable to the Court of Protection and the Office of the Public Guardian supervisors and supports deputies.
A PDF of the full Code can be found here.
To contact him about any Court of Protection / Deputy costs matter or about any issue raised in this blog, please click here.