Grey matter

The judgment of Her Honour Judge Hilder in Re ACC & others [2020] EWCOP 9 has significantly changed the way in which professional deputies approach their authority to obtain legal advice on matters for their clients, or to enter into any litigation on their behalf (for more information on the judgment and the impact on property transactions, tax returns, and continuing healthcare and education challenges, read my commentary here).

While much has been written on the judgment and a briefing note prepared by various stakeholders (see the end of this article), some 18 months on there are still many grey areas around the requirements set out within it, that are leading to deputies having to second-guess what action they need to take in some respects.

This article offers examples of areas of concern for deputies in establishing whether the specific work falls within their remit and is an “ancillary part” of the authority given to a deputy within their deputyship order, or whether it requires specific approval from the Court of Protection (CoP) in light of Re ACC.

Statutory wills

Statutory wills are considered to be within the deputy’s remit and therefore a matter that can be properly considered under their general deputyship order. The initial considerations still apply in terms of whether the application would be in P’s best interests, within their affordability threshold and whether the will is required in place of intestacy rules.

If the deputy has the requisite expertise, they can draft P’s proposed will once they have fully identified P’s wishes, and can also give advice throughout the process.

If, however, the appointed deputy does not have the requisite expertise and another professional in another legal team is required to assist, then it will still be necessary to obtain three quotes for the work and adhere to the now-established rule of not instructing the deputy’s own firm if quotes are £2,000 + VAT or more, unless specific-court approval is obtained.

Authority under Re ACC to consider and prepare the will and submit the application is not required, however.

A property and financial affairs deputy can consider the suitability of P’s education, health and care plan and whether any action is required but must be careful not to overstep their authority

If the statutory will application becomes contentious, then it is arguably best to err on the side of caution for now and seek express authority from the CoP, given its clear guidance on litigation being outside of the deputy’s general authority. If you already anticipate the matter will become contentious, you could seek such authority within the initial application papers.

Gift applications and family care payments

Gift applications and family care payments decisions are also considered to be within the professional property and financial affairs deputy’s general authority to consider and approve, without prior approval from the court.

The same considerations as to affordability in proportion to P’s estate and future needs, reasonableness and benefit to P still need to be detailed on the file. The Office of the Public Guardian’s (OPG) practice note (SD14) provides detailed guidance on OPG’s approach to family payments and confirms that it will expect to see evidence from the deputy of best interests decision-making.

OPG practice note PN7 offers guidance on how deputies and attorneys should approach giving gifts on behalf of P. Attorneys should also consider the guidance under section 12 of the Mental Capacity Act 2005.

Education, health and care plans

It is well established that education, health and care plans (EHCPs) sit outside of a property and financial affairs deputy’s remit (even though there can be a direct financial impact in respect of how much funding is then received from the local authority), and are therefore deemed to be a health and welfare matter. A property and financial affairs deputy can consider the suitability of P’s EHCP and whether any action is required but must be careful not to overstep their authority.

Should the matter need to be challenged formally by the deputy, and the matter moved to a tribunal, then Re ACC authority is absolutely required before taking these steps. The judgment notes that given the two-month window in which to lodge an appeal against an EHCP decision, any application should clearly indicate that the court’s urgent consideration is required.

Acting as a personal injury or clinical negligence lawyer

When a lawyer is acting in their capacity as a personal injury or clinical negligence lawyer, if they then also consider being appointed as deputy, there is currently no guidance that suggests this is not possible or that it would require court approval. However, the usual considerations of whether it is practical, reasonable and in P’s best interests for the lawyer to be appointed as their deputy should still be considered thoroughly.

Acting as a litigation friend

Paragraph 58 of the Re ACC judgment specifically addresses the issue of a deputy acting as a litigation friend. While a deputy is able to act in the role, it is worth noting some further points within the judgment before confirming the appointment.

Where there might be a conflict of interest or no other person available to act without charging P, the court suggests that the Official Solicitor may be best placed to act instead. The Official Solicitor attended the Re ACC hearing and raised concerns over P being charged for someone to act as their litigation friend. The judgment states: “The question of whether a particular person should be authorised to act (and be paid for acting) as P’s litigation friend is a best interests decision, where the intention to charge fees for so acting is a relevant consideration but not necessarily determinative.”

A professional litigation friend who wishes to charge for their role could still be successful in this appointment but should obtain express court approval.

As a general point, it is advisable that if at the time of applying for a deputyship it is evident that the deputy will soon need to consider some matters deemed to be outside of their remit, these requests for approval can be included within the initial deputyship application. It is also entirely possible for an application for authority to include a number of separate requests for authority, provided the necessary evidence is attached. This may assist with current court waiting times for orders and enable the deputy to move forward more quickly to deal with matters for P.

Guidance

The Society of Trust and Estate Practitioners (STEP) has prepared a briefing note with the Law Society, Solicitors for the Elderly, the Court of Protection Practitioners Association and the Professional Deputies Forum, which offers further guidance for practitioners.

Attached to the briefing note is a flowchart, which helpfully establishes the steps to be taken on each occasion, as approved by Her Honour Judge Hilder.

Conclusion

The grey areas in Re ACC are likely to continue for a while longer, as practitioners get to grips with the judgment and further guidance filters through. Lots of practitioners will prefer to err on the side of caution and seek court guidance when unsure on their remit, although this can, of course, lead to delays for P and increased or wasted costs.

It is becoming even more common practice to ensure that decisions made for P that relate to Re ACC in any way are backed up with clear and detailed best interests notes on the file. That way, should a query be raised by the court, OPG or Senior Courts Costs Office, the evidence and the steps taken by the deputy are readily available.