The one certainty about deputyship costs for a brain injured client is that its never a case of “one size fits all”. Predicting future Deputyship Costs for your client requires careful consideration.
Has the Mental Capacity Act led to an increase in professional Deputyship fees?
On the whole I would say yes. Although a Deputy is often given fairly wide powers, they must only use those powers to make decisions which the client cannot make. So when a decision is needed, the Deputy has to consider whether the client might be able to make the decision for themselves.
If the client lacks capacity, the Deputy will need to make a decision on their behalf although that may still involve consultation with the client and others. The cost of a Deputyship will therefore vary considerably depending upon the level of the client’s retained capacity.
How are costs calculated?
Fixed costs are an option but they will be inadequate for a Deputyship involving a high value personal injury claim. In this instance, it is usual to opt for a detailed costs assessment. Costs are based on the court guideline rates.
What factors can result in increased costs?
The client’s behavior or that of their family can be a factor, as can communication difficulties, relationship volatility, substance abuse, criminal activity, violence or mental health problems.
If the Deputy is also an employer, additional costs may also flow out of employment related issues.
Most clients will have periods of crisis during the course of their lifetime such as bereavement or relationship breakdown and this generally involves increased Deputy input. The Deputy may also have to deal with issues arising out of the religious or cultural aspects of the client’s life; arranged marriages, Sharia compliant investments, buying property abroad and funding the cost of an annual pilgrimage are just a few examples of the things we have had to address at Hyphen Law.
How often do you need to go back to the Court?
It varies. The first Deputyship order may be time limited or it may be necessary to return to Court following an interim or final payment. Applications will also be needed for the appointment of a new Deputy which may be every 10 to 15 years unless the Deputyship sits within a trust corporation.
What about Wills?
If the client lacks testamentary capacity, then a Statutory Will may be needed and anyone adversely affected by the proposed Will must be notified of the application;
It is usual for all parties’ costs to be paid out of the client’s estate, including those of the Official Solicitor. In a recent case, the combined assessed costs of the Deputy, the Official Solicitor and the three other firms of solicitors representing family members amounted to over £60,000.00 without going to a hearing.
If you think a contested Statutory Will application is likely, it is advisable to resolve that issue prior to the conclusion of your client’s litigation.
Are there any other expenses associated with a Deputyship?
The COP, SCCO and Office of the Public Guardian all charge for the services they provide and many of those fees are paid annually. There is an annual premium for the deputy security bond and this will vary depending upon the level of security set. A professional cost draftsman will be needed to prepare bills for assessment and their fee is usually based on a percentage of the profit costs. A capacity report will be required to support all applications to the Court and the cost of obtaining a report varies hugely. I have known fees range from £50.00 to £3,000.00
As you can see, Deputyship costs can vary enormously according to the individual and their needs. The costs are likely to be a significant part of any client’s claim and getting the figures right requires careful attention to detail.