If you are acting as a deputy for finance and property you may have some questions about your role and what you need to do. For example, some of you questions may include, can you bring a claim on behalf of the person for whom you act? Are you able to undertake other legal steps, such as instructing a solicitor for conveyancing costs and tax returns? How far are you allowed to go and when do you need to seek Court of Protection approval for your steps?
As it happens, a recent judgment has provided guidance regarding the extent of property and financial affairs deputies’ authority to take legal action on behalf of a person who lacks capacity. The case of Re. ACC & Ors (2020) concerned deputies’ authority to conduct litigation and whether this fell within deputies’ ‘general authority’ to act.
In Re. ACC, the Court concluded that deputies’ ‘general authority’ does not include the power to conduct litigation, although property and financial affairs deputies will be relieved to know that they are permitted to make an application to the Court of Protection in respect of property and financial affairs issues. Deputies may also take legal advice on litigious issues regarding property and financial affairs, up to the point of receiving a letter of response. However, specific authority is required from the Court in order to conduct any further litigation as deputy.
Deputies’ ‘general authority’ also includes non-contentious legal tasks such as conveyancing and preparing tax returns. However, deputies are expected to apply to the Court for authorisation in any case where the costs are expected to exceed £2,000 plus VAT. Where the deputy decides to instruct a third party to provide legal work, the Court also advised that three separate quotes should be obtained and a best interests decision undertaken to determine which is most suitable.
The Court also confirmed that property and financial affairs deputies do not have authority to make decisions regarding health and welfare matters, unless stated within a court order. As with litigation, property and financial affairs deputies need to seek the Court’s approval in order to make decisions of this kind, which is understandable given that welfare decisions are often very personal in nature.
Deputies may be able to apply for retrospective authorisation, depending on the nature and urgency of the decision. However this does carry a risk that the Court will refuse authorisation and take action against the deputy for non-compliance with their deputyship order. With this in mind, we would recommend that if you are acting as deputy and are contemplating a potentially controversial decision, it is best to apply to the Court sooner rather than later to make sure that your decision is authorised.
The Office of the Public Guardian (‘OPG’) has provided useful guidance regarding this judgment and what it means for deputies. It is important for deputies to note that applications to the Court should be made in respect of any unauthorised work which has been started or is ongoing since 27 February 2020, by 1 April 2021.
As you can see, navigating the Court dos and don’ts in acting as a deputy can be tricky and potentially costly. If you would like any advice about the role of a deputy please contact our dedicated team, or for more information visit our later life planning page.
