Can A Protected Party’s Funds Be Used To Pay My Legal Costs?

There are times when deputies and attorneys need the permission of the Court before taking certain steps in relation to the finances of a protected party.

Sometimes, when two or more attorneys are acting and they cannot reach agreement over a certain issue, the only solution is to start proceedings in the Court of Protection to have a Judge resolve the issue. In occasional cases, proceedings arise when one or more attorneys have misbehaved in some way.

Can a protected party’s funds be used by an attorney or deputy to pay their legal costs?

A question that is frequently asked by attorneys and deputies. This is often understandable – the proceedings are about the protected party after all and whilst attorneys sign up to the responsibility of managing the protected party’s money, they don’t usually expect to have to commit their own funds to the process. But in litigation there is always an element of uncertainty – in some cases more than others.

The general position is that in cases involving a protected party’s property and finances, the protected party’s estate will bear the legal costs involved (rule 19.2 of the Court of Protection Rules 2017), however the parties should beware rule 19.5. This provision allows the Judge to depart from the general rule and order one or more of the parties involved to pay their own legal costs, or to meet the costs of others.

The key factors that will sway a Judge are:

1. the conduct of the parties involved;
2. whether or not one party has succeeded on part of his/her case; and
3. the role of any Local Authority.

The Court’s approach

Cases which involve seeking the Court’s approval of certain steps attorneys and deputies want to take are often (though not always) less controversial, and situations where the attorneys’ opinions are divided (e.g. whether or not money should be invested in a particular way, or whether or not a property should be sold) will not normally trigger the Court’s discretion.

However, it should be remembered that costs are not awarded until the case has appeared before a Judge – although it is sometimes possible to apply for an interim order if an attorney or deputy cannot personally afford to take the matter forward and there is a degree of necessity.

But if two attorneys are in conflict the situation can become more complex, particularly if there are allegations of improper conduct, ranging from negligence to fraud. In such situations, it would not be appropriate for two or more warring attorneys to spend the protected party’s money on legal costs fighting one another. There is less certainty over the Court’s likely findings at trial and if one party is found to be at fault (particularly if fraud is established), to allow that party to have paid his/her legal fees from the protected party’s funds would be wholly inappropriate. If such an allegation is not upheld, the seriousness of having made it in the first place means that failing to prove it can be barred from recovering his/her costs.

Even in less dramatic disputes, the Court can still disallow costs recovery or limit the amount it is prepared to pay one of the parties. Some Court of Protection cases aren’t just about money and can also involve health and welfare issues. For the health and welfare element of the case, costs are not normally recoverable from the protected party under rule 19.3.

Comment

Therefore, it is never safe to assume that you will be able to recover your legal costs from a protected party’s resources, although if the proceedings are less controversial in nature and solely about property and finances, there is usually a very good chance costs will be awarded at the end.