An individual who lacks the capacity (a protected party) to manage their finances and has not made a Power of Attorney can have a deputy appointed to administer their property and financial affairs. A property and affairs deputy appointed by the Court of Protection will often have a fair amount of work to do to ensure that the protected party’s finances are managed carefully and responsibly and The Court of Protection Rules 2017 provide that deputies can normally be expected to be reimbursed out of the protected party’s funds for all reasonable expenses in discharging their functions, and time costs.
Remuneration for deputies is most commonly incurred when a professional deputy is acting with their costs being assessed by the Senior Courts Costs Office, and in some cases, it can also be possible for lay deputies to be paid in accordance with the fixed fee costs set out in Practice Direction 19B in the Court of Protection Rules 2017. Pursuant to Practice Direction 19B, fixed fee costs automatically apply when the net of the protected party’s assets falls below £16,000 and the practice direction states that the deputy cannot charge more than 4.5% of the protected party’s assets per annum. Generally, fixed costs are far lower than assessed costs which professional deputies can claim but nevertheless, the rules do allow for a deputy to seek recovery of costs, provided the Judge agrees.
Fixed fees can sometimes be significantly lower than the actual amount of time professional deputies incur when dealing with a protected party’s affairs. A recent decision involving the Court of Protection has demonstrated that when the Court is asked by deputies to increase their level of remuneration, the specific facts of the case and circumstances in which the protected party finds themselves will have a bearing on the decision to award costs over and above fixed fees.
In Riddle v Parker Rhodes Hickmott Solicitors, the applicant Mr Riddle (a Professional Deputy) was acting for a Protected Party, who was 90 years of age with £140,000 in savings and property worth approximately £210,000. At the time of appointment, the deputyship order provided that Mr Riddle was allowed to recover only fixed costs for his time at the public authority rates. This aspect of the Court order was not initially challenged at the time of appointment.
Mr Riddle made an application on the basis that the work the deputy had to undertake turned out to be much more than he had expected, and given the size and complexity of the estate the remuneration received was not adequate. The application was initially considered by HHJ Hilder who held it was not appropriate to allow Mr Riddle to have his time costs assessed by the SCCO. Mr Riddle applied for permission to appeal that decision which was declined, again by HHJ Hilder.
Mr Riddle then appealed HHJ Hilder’s decision to refuse him permission to appeal and the matter was heard by the Vice President. In the course of his appeal, Mr Riddle listed the work he undertook as Deputy to demonstrate how this went beyond his role as general administration and further, how fixed fee costs would not be adequate to compensate him. The appeal was heard by HHJ Hayden who noted the fixed rates currently allowed may have barely covered Mr Riddle’s costs. HHJ Hayden did not however allow the appeal although she did acknowledge that the rules set very low limits on deputies’ costs which were perhaps unrealistic. The judgment also acknowledged the value of professional deputies in more complex cases such as this, and it is possible that this case will lead to a review of the fixed fee structure at least.
This case does perhaps emphasise the difficulty that a deputy may have in seeking to have limits on remuneration altered. The judgment appears to suggest that the Applicant could not provide everything he needed to in order to completely convince the Court to depart from the fixed fee process, and although it is possible that this was a factor in the decision, HHJ Hayden did not comment on whether the outcome may have been different if Mr Riddle was able to provide more evidence confirming his role went beyond general administration. The decision however does once again stoke the debate over the level of deputy remuneration and whether it should be increased – and it is possible that there will be further calls for this with inflation on the rise.
This judgment should certainly be considered carefully and it may be that in future deputyship applications the deputy-to-be seeks authority for their costs to be assessed by the SCCO, and for this to be built into the deputyship order. The case has also highlighted the low levels of the fixed fee remuneration rates, although the ability to amend these fall outside of the Court’s jurisdiction.
Although this decision applies in the main to professional deputies, given that there is a possibility for lay deputies to claim hourly rates for their work (in certain specified circumstances), it is highly recommended that they keep records of all the work they have completed including the dates, the time taken and the activity involved.
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