Deputyship costs have been in the spotlight since the Mental Capacity Act. The issue came to the fore again recently when the Office of the Public Guardian (OPG) said there is a need for better control of costs. Here Kelly Knight, a solicitor at Hyphen Law who specialises in Court of Protection deputyships, offers her advice.
Why appoint a professional deputy?
There are a variety of scenarios where the appointment of a professional deputy, such as a lawyer, may be considered more appropriate or necessary rather than the appointment of a lay deputy such as a family member. One such example is where an individual lacks the capacity to deal with some or all aspects of their property and affairs and has been compensated by a large personal injury award..
How important is it to get costs right?
Lay deputies can only recover out of pocket expenses; however a professional deputy is entitled to be paid. If provision for deputyship costs is inadequate, it will erode other heads of damage and could expose the litigation lawyer to a claim for negligence. Deputyship costs can amount to hundreds of thousands of pounds (particularly in cases where the person lacking capacity has a good life expectancy) and so they form an important and significant part of the claim.
How are costs calculated?
Professional deputies obtain their costs from the estate of the person lacking capacity. Professional deputies have two options: they may charge fixed costs or they may apply to the Senior Court Costs Office (SCCO) for their costs to be assessed. Fixed costs are unlikely to be sufficient to properly remunerate a deputy for the total cost of work over the years.
What does the assessment process involve?
The assessment process involves the SCCO examining the deputyship file and determining that costs have been claimed fairly and charged at the correct level (according to the grade of fee earner and region where the lawyer is based). This provides an independent verification of the professional deputy's charges. The assessment process also takes in to account the value of the individual’s estate and the costs must be proportionate to the matter for which they are claimed.