OPG Guidance Creates Practical Problems For Deputies Selling A Protected Party’s Property

Deputies are appointed by the Court of Protection in circumstances where a protected party has lost the capacity to conduct their financial affairs or deal with their property, and nobody has been appointed to act as their attorney.

A deputy acting for a Protected Party (an individual who lacks capacity) has a duty to act in that individual’s best interests. Deputies must also act strictly in accordance with the scope of their powers as set out in a deputyship order and within the parameters set by the Court of Protection.

A deputy who goes “out of bounds” can in some circumstances apply retrospectively for the Court’s approval of their actions, but this is not by any means guaranteed and if the Court of Protection is not happy with the action taken by a deputy, it can order the deputy to rectify what they have done or, in more serious cases, order that the deputy should be removed from their role. Deputies are supervised by the Office of the Public Guardian (OPG) and the OPG can bring Court applications if it considers a deputy not to have acted properly. It can also demand that a deputy seeks the Court’s permission to conduct certain acts on the protected party’s behalf.

In practical terms, this means that deputyship orders should be followed to the letter, and this can create difficulties for deputies, particularly when dealing with property. When an individual with property has lost capacity and is in need of care, it can sometimes be necessary to sell their home so that their care fees can be met. Alternatively, depending on the protected party’s state of health and their needs, it might be necessary to complete work on a property, or purchase a different one that is better adapted.

One of the problems deputies have faced is dealing with permission. Historically, unless deputyship orders specifically provided that a deputy had permission to sell a property, they had to apply to the Court of Protection for permission. This has changed however recently, particularly after the judgment in ACC & Others [2020] EWCOP9 (Re ACC) – the Court recognised that deputies cannot often afford to wait for six months or even a year for such an application to be heard by a Judge.

OPG guidance to professional deputies selling a protected party’s property

Guidance recently issued by the OPG to professional deputies (often, but not always, solicitors/solicitors’ firms), however, stipulated that solicitors must either conduct the conveyancing work themselves and recover only fixed costs from the Court, or alternatively – if the deputy’s firm does not undertake conveyancing work – obtain three quotes and apply to Court for approval of the lowest one if the fees involved exceeds the fixed rates the OPG will allow. The guidance also stated that the OPG “did not expect deputies to make applications for retrospective authorisation for conveyancing work” meaning that deputies are expected to get permission ahead of instructing a third-party firm to complete conveyancing work.

This creates a significant problem for a professional deputy that is under time pressure to sell a property as the Court of Protection is currently taking almost 12 months to deal with most applications. There has been some dialogue however with the OPG from professional deputies and it is hoped that a common-sense approach will be taken for deputies who do not have the means themselves to conduct conveyancing work and need to rely on third-party firms. There is most likely more to come on this.