Can a Deputy litigate and take advice on behalf of a protected person?

Taking advice about issues that may become contentious and representing your client in those matters are part of the day to day work of a deputy.

I like to think that this is not because deputies are particularly argumentative people, but because we often represent people in difficult circumstances, or where they have particularly complicated estates. It is commonplace to have to deal with issues arising out of employing carers, building and adapting property, and disputes about what care and education the protected person (‘P’) should receive.

The recent case of ACC, JGJ and HPP [2020] EWCOP 9 resulted from the linking of three applications submitted by another firm’s Court of Protection team for authority for the deputy to be able to meet the costs of other teams in their firm, namely the teams dealing with Education, Health, Care and Support Plans and the costs of a litigation friend within the personal injury team.  The question submitted to the Court was confirmed at paragraph 14: ‘ when may a professional deputy instruct a legal firm with which it is associated, and recover the costs from P?‘. However, the answer that the Court has given has far wider implications for professional deputies than simply with regard to instructions at their own firm.

What legal advice can be sought by a deputy without additional authority?

In relation to what general tasks can be subsumed into the day to day general authority of a deputy, Senior Judge Hilder concluded at paragraph 53.6 that ‘authority to do an act on behalf of P encompasses such ordinary legal tasks short of taking proceedings as are an ancillary part of giving effect to that authority.’ She continued at 53.8 that ‘the deputy’s approach should be to ask themselves if the subject of the advice is within their authority ie will their existing authority be sufficient to act on the advice if taken? If it is, then seeking advice is likely to be an ‘ordinary’ part of that function. If it is not, seeking advice is likely to be outside their authority.’

By way of example, this means that authority to sell or purchase property includes authority to instruct a conveyancer, authority to let property includes dealing with those leases, and applying P’s funds to meet the costs of care authorises dealing with employment contracts.

From a costs recovery perspective, the Court takes two separate approaches, depending on whether the matter in hand is in relation to financial affairs or welfare.

Firstly, where the matter relates to property and financial affairs, and the taking of legal advice on behalf of P is in relation to something that falls within the deputy’s general authority (ie taking advice on employment contracts, tenancy agreements etc), general advice can cover a letter before claim, counsel’s initial advice on the matter, and a letter of defence. It falls short of formal issue of proceedings. This advice can be sought without additional authority, provided that the costs for the seeking of that advice complies with the guidance below.

However, a different approach is taken where the matter falls outside of the realm of property and affairs, and into the realm of health and welfare. In the words of the Court, ‘there is simply no line to be drawn’ (paragraph 54.6), as a property and affairs deputy’s authority only relates to property and affairs. The deputy’s authority to act or seek advice without additional authority only extends to bringing the Court’s attention to the fact that there is or may be a welfare issue for determination, by seeking directions as to how that potential issue may be addressed.

To put this in practical terms, a property and affairs deputy can seek advice on, and support P in an application for Continuing Healthcare Funding without additional authority, and if an application is denied, initial advice on the appeal can be taken without additional authority, but specific authority should be obtained from the Court before a letter of appeal is lodged. The judgement makes it clear that appealing Education, Health and Social Care plans are outside of the remit of a property and affairs deputy, but doesn’t confirm the position about seeking advice and assistance in terms of their initial securing, which is an interesting conclusion as they have clear financial consequences for P by way of provision of therapy and support.

Where a matter is urgent, then an application for retrospective approval may be required, citing the reasons why the matter proceeded without permission. The deputy is at risk on costs if this approach is taken.

What authority is required to conduct litigation?

The line between taking advice and litigation can be hard to determine, but as above, it is defined in this judgement as the issuing of proceedings.

Regarding what authority a deputy requires to either start or incur costs in respect of litigation, the Court concluded at paragraph 51:

• A deputy has a priority claim to being a litigation friend over others (Rule 21.4 Civil Procedure Rules 1998 and Rule 15.4 Family Procedure Rules 2010).
• The Court retains ultimate discretion as to who can act as litigation friend.
• Specific permission must be sought before engaging in:
  • Any litigation outside of an application the Court of Protection;
  • Health and welfare proceedings in the Court of Protection, unless it is an application to bring to the Court’s attention the non-action of another body regarding a health and welfare issue.
• Specific permission is not required to engage in property and affairs proceedings in the Court of Protection, unless the Order appointing a deputy specifically requires this

Where a matter is urgent, then an application for retrospective approval may be required, citing the reasons why the matter proceeded without permission. The deputy is at risk on costs if this approach is taken.

Can a deputy instruct their own firm to give general advice, and carry out litigation?

The simple answer is ‘yes’ but only in the following situations:

1. Specific authority to do so is granted either on application for appointment of deputy, or subsequently by way of specific application to the Court of Protection. The authority may set a limit to the amount of fees that can be incurred in any item of advice. Such an application can also include authority to act in relation to the matter if the matter falls outside of the deputy’s general authority to act.
2. Where the following conditions are met, the deputy’s own firm can be appointed to act:
   1. three quotations have been obtained from suitably qualified and appropriate advisors;
   2. the deputy considers that it is in P’s best interests to proceed with their own firm;
   3. legal fees incurred will be specifically accounted for in the OPG report and decision making notes appended to the report;
   4. the anticipated costs do not exceed £2,000 plus VAT

However, where the fees may exceed £2000 plus VAT, or where specific authority is required in any event (such as where the matter requires the issuing of proceedings, or is in relation to a health and welfare matter), then an application for authority will be required in any event.

Legal costs of a third party

The judgement is clear that the deputy’s authority does not extend to paying the legal costs of any family member or related party, and if this is suggested, then specific authority must be obtained by the deputy.

Practice points

• It is crucial to keep clear notes and records of all quotes obtained and best interests decisions made
• Practitioners will need to think very carefully at the outset of a deputyship as to what legal advice may be required during the lifetime of that deputyship appointment, particularly regarding health and welfare issues, which can become very integrated with property and financial affairs matters
• In some complex cases, where significant amounts of advice will be required, it will be proportionate to seek authority to instruct additional advisors on a number of matters in advance
• Where a deputy is appointed mid litigation, there may be consequences of the above judgement for the payment of litigation costs where those costs are incurred in house
• The position regarding appeals in respect of benefits is unclear; are they to be treated as analogous to continuing healthcare or EHCP applications, or are they differentiated from these?