Remuneration in relation to deputyship costs

 In Elderly/Vulnerable Client

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Deputyship costs – Re AR [2018] EWCOP 8

Charles, J had to consider an application in relation to the validity of Orders relied on by a Professional Property and Affairs Deputy, Neil Cawthorn (‘Mr Cawthorn’), to enable him to apply for remuneration in his role as a Deputy.

The facts

Case Summary from LawSkills | Private Client specialist trainersNeil Cawthorn was a solicitor and principle with Neil Cawthorn & Associates (NCA). Mr Cawthorn provided a professional deputyship service through Professional Deputy Services (‘PDS’) which is a division of NCA and had been appointed as a Deputy for over one hundred Patients (‘Ps’). While Charles, J acknowledged that Mr Cawthorn provided a good service to each P in his role as Property and Affairs Deputy, the core issue of contention was Mr Cawthorn’s reliance on Orders made by the Court of Protection which set generic remuneration of Mr Cawthorn’s deputyship costs.  This case related to one particular P ‘AR,’ although the points raised related to his work on behalf of thirty-one other Ps.

Charles, J had to consider the validity of the Orders taking into account the principle of ‘best interests’ which effects decisions on remuneration under section 16 (5) and section 19 (7) of the Mental Capacity Act 2005 and consider the application of Practice Direction 19B of the Court of Protection Rules 2017 (rule 19.13 (1)(a) to rule 19.13 (1)(c)) with regard to fixed costs.

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The law

Mental Capacity Act 2005 (‘MCA 2005’)

Under section 16(3) Mental Capacity Act 2005 (‘MCA 2005’) provides that the decision to appoint a Deputy is a ‘best interests’ decision which has to be made by reference to the individual facts of a particular case. This was confirmed by Senior Judge Hilder in Various Incapacitated Persons (Appointment of Trust Corporations as Deputies), Re [2018] EWCOP 3.

This principle also applies to decisions on remuneration made under section 16(5) and section 19(7) MCA 2005.

Practice Direction 19B supplements the Court of Protection Rules 2017 (rule 19.13 (1)(a) to rule 19.13 (1)(c)) [‘Rule 19’] and sets out the fixed costs that may be claimed by a Solicitor or Public Authorities acting in Court of Protection proceedings and allows fixed amounts of renumeration that solicitors and Office Holders of Public Authorities when acting as a Deputy. However, Rule 19 gives other options to the COP in relation to the remuneration of Deputies.

The decision

Charles, J ruled that the Orders should not be relied on and each case where Mr Cawthorn relied on the Order had to be reviewed. Charles, J stated that the Orders contravened a ‘fundamental principle of the MCA 2005’ as they did not have proper regard to the ‘best interests’ of the Patient. Effectively, the Orders were generic in nature and did not identify the P who the Orders related to or refer to any supporting evidence relating to each P. Additionally, Charles, J confirmed that PD 19B of the Court of Protection Rules 2017 did not give a presumed level of charge out rates for a Deputy on the basis of the appointment to the role and PD 19B was merely one of the options available to the COP when a Deputy was appointed

Charles, J ruled that the Orders must be formally set aside and that the Court of Protection was had made an error in issuing the Orders and Mr Cawthorn was incorrect in his original application for such Orders. Additionally, Charles, J confirmed that PD 19B of the COP Rules 2017 did not give a presumed level of rates for Deputy charges on the basis of the appointment to the role but was merely one of the options available to the COP when a Deputy was appointed and this is supported by Rule 19 which clearly sets out alternatives. The individual facts of a case should be taken into account in relation to remuneration decisions  and PD 19B should be used ‘an appropriate cross check in relation to the reasonableness of rates.’

Practice points

Practitioners should check their current deputyships files to see if they have similar Remuneration Orders and have their cases reviewed by the COP as soon as possible to avoid future issues in relation to claiming costs.

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