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Her Honour Judge Hilder has given judgment in ACC & Others  EWCOP 9, a test case which concerns the circumstances in which deputies must seek authority to litigate on behalf of P and other considerations such as managing conflicts where a professional deputy proposes to instruct its own firm in the litigation.
The specific facts of the three cases that were before the court are of far less interest than the extremely useful guidance that the Court gave, on the issues arising as follows:
The “general” authority to manage property and affairs which is granted by the standard deputyship order encompasses those common or ordinary tasks which are required to administer P’s estate efficiently. It does not encompass authority to conduct litigation on behalf of P, which must be specifically granted [paragraph 51].
Where granted, the authority gives the deputy priority over others in the hierarchy of potential litigation friends for P and it enables the deputy to use P’s funds to meet the reasonable costs of the litigation and any adverse costs order.
Specific authority to conduct litigation on behalf of P does not need to be sought where the contemplated litigation is in the Court of Protection in respect of a property and affairs issue or seeking directions in respect of a welfare issue [paragraph 52].
Authority to make a decision / do an act in respect of P’s property and affairs encompasses such ordinary non-contentious legal tasks, including obtaining legal advice, as are ancillary to giving effect to that authority [paragraph 53]. In particular:
Where a deputy has authority to make a decision / do an act in respect of P’s property and affairs, such authority encompasses steps in contemplation of contentious litigation in the realm of that authority up to receiving the Letter of Response but no further [paragraph 54.4]. In particular:
If circumstances arise where the protection of P’s interests requires action to be taken so urgently that prior authority to litigate cannot reasonably be obtained, a deputy proceeds at risk as to costs but may make a retrospective application for authority to recover costs from P’s funds. There is no presumption that such application will be granted – each application will be considered on its merits [paragraph 55].
In cases where an urgent injunction is required on P’s behalf and where the deputy will need to offer a cross-undertaking in damages, the application for retrospective authority should note the deputy’s exposure on the cross-undertaking and seek urgent consideration by the Court. It appears that such applications will be referred for consideration by the Urgent Business Judge (and it would be prudent to mark them as such).
Where a deputy wishes to instruct his own firm to carry out legal tasks, special measures are required to address the conflict of interest:
It was being suggested by the applicant that the standard terms of a property and affairs deputyship would be sufficient to permit the deputy to use P’s funds to reimburse the third party’s expenditure (if in P’s best interests). The thrust of the argument being that the concerns about conflict would not be so acute because a third party (such as a family member) would have a degree of detachment over the question of whether or not to instruct the deputy’s firm.
The court disagreed with this proposal. Specific authority is required to use P’s funds to pay a third party’s legal costs, even if those costs relate to litigation for the benefit of P [paragraph 57]. The general authority of a property and affairs deputyship does not encompass such a use of P’s funds.
The court declined to rule on the question of whether or not a litigation friend may charge for acting as such, but noted (plainly discouraging such applications) that it will be extremely difficult to satisfy the Court of Protection, either prospectively or retrospectively, that granting authority to any person to charge P for acting as litigation friend (as opposed to incurring the cost of solicitors and counsel when acting as litigation friend) is in the best interests of P.
The Court further noted that the Official Solicitor is willing to act as litigation friend for P without charge in any of the existing classes of cases in which she acts where her usual criteria are met. [paragraph 58]
If P has capacity to give instructions for particular work, he will also have capacity to agree the costs of that work. [paragraph 59]
In assessing whether or not P has capacity to give instructions, the relevant information that P will need to be able to understand in relation to the decision to give instructions for a specific piece of work includes:
This was not an issue that arose on the applications and can in many cases be quite a difficult question, particularly where the litigation proposed is against someone who is a family member of P. You can read my thoughts on how to approach the question of litigating in P’s best interests in this handout which I prepared for my talk on Financial Abuse at SGCL’s Elderly Client Conference last year, which can be downloaded here: Financial abuse SGCL.
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