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Have you thought about capacity?

View profile for Christine Bunting
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Hyphen Law is a specialist law firm dealing only with Property and Affairs Deputyships and Personal Injury Trusts for clients who have suffered catastrophic injuries.

If you are pursuing a claim for compensation, the question to ask at an early stage is: “will my client have the capacity to manage the interim or final damages that I secure for them?”  

If an appropriately qualified expert is of the view that they will not and your client has not appointed a suitably qualified attorney and is incapable of doing so, a Property and Affairs Deputy will be needed.  It is then vitally important that the costs of the Deputyship are properly quantified in order to avoid an undervalued claim.

Timing -   It can take six months or more for the Court to make an order so an early application is beneficial.   The Deputy, once appointed, will only make decisions which the client is unable to make for themselves; for badly injured clients the Deputy may be making most, if not all, of the decisions around their client’s finances but, for their more able client, they will assume a “light” touch.

Team work – A good Deputy will work closely with the client, their litigation lawyer and all the other professionals who form part of the client’s team. Good accessible records, careful budgeting and plenty of advance planning around interim payments are areas in which the Deputy will play an important role, adding value to the litigation process and beyond. 

Should a family member act as a Deputy?

Sometimes the lack of provision for professional fees has meant a family member feeling morally bound to act as Deputy. The role can be demanding and onerous, bringing emotional complexities and tensions which impact on family life.

The Court of Protection may insist on a professional Deputy if the clients’ assets are likely to be significant.

What about the cost?  

We keep careful records and statistics which indicate what the costs are likely to be for particular clients, those who have similar needs, behaviour, family structure, care packages etc.  We are frequently asked to provide statements to support this aspect of our clients’ claims.

What sort of things impact on Deputyship costs?

Each client is different and needs a tailored approach.  Meeting a client’s needs can include managing the additional complexities of difficult behaviour, complicated family dynamics, relationship breakdown and cultural issues, to name but a few, and all within the statutory obligations of the Mental Capacity Act.