The JE Bennett Law team notes the Office of the Public Guardian’s new guidance following the judgment of Her Honour Judge Hilder in the ACC and Others case handed down on 27th February 2020. Senior Judge Hilder gave judgment regarding the authorisation deputies need to use legal services, and also regarding the management of conflicts of interest.
Aspects Within Existing Authority
The OPG’s guidance confirms that the following aspects are within the authority of a property and financial affairs deputy:-
- Property conveyancing
- Management of leases
- Business and associated employment contracts
- The preparation of tax returns
- Taking advice on tenancy liabilities and
- The arrangement of care and support
Aspects Requiring Additional Authority
The OPG’s guidance confirms that specific additional authority is required for other matters a deputy may be required to deal with that lie outside their general authority. An application to the Court of Protection for separate permission/authority to act will be required by deputies in the following instances:
- To conduct litigation on behalf of their deputyship client (except where this relates to a property and affairs issue to be dealt with by the Court of Protection). Note that if the matter is contentious and relating to a financial matter the deputy may go no further than receiving a letter of advice after which specific authorisation is required from the court to proceed.
- To use their deputyship client’s funds to reimburse a third party instructed to act on the deputyship client’s behalf, including if the third party is a family member.
- To make decisions which exclusively deal with health and welfare matters, unless the court order appointing the deputy allows this.
- To conduct litigation regarding Continuing Health Care funding appeals, and also Education, Health and Care Plans
Where such specific additional authority has not been applied for, the Office of the Public Guardian will require the deputy to seek retrospective authorisation from the court. As the Public Guardian supervises a deputy’s work, if such authorisation/retrospective authorisation is not obtained, the matter will be referred to the court for a decision to be made on the issue.
Conflicts of Interest
In relation to conflicts of interest, the Office of the Public Guardian’s guidance states that where a deputyship is in prospect, the proposed deputy needs to consider whether there is going to be a need to instruct third parties on other issues at the time of applying for the deputyship appointment. For example, if the deputy’s own firm provides the service which it is envisaged might be needed, specific authority should be requested, in the application for deputyship, for their firm to be instructed in the matter. This should be made with a specified costs limit as to their firm’s costs in acting. The court will then make a ‘best interests’ decision on whether this is an appropriate course of action; whether it should be limited in time, and as to the associated costs.
If the deputy’s firm has not been specifically authorised but the prospective deputy does have authority to instruct someone else, then three separate quotes should be provided including one from their own firm. It will be expected that the deputy makes the ‘best interests’ decision as to who to instruct. However, if they decide to instruct their own firm an application for specific authority will still be required if likely costs exceed £2,000 plus VAT.
Where deputies are already appointed, Her Honour Judge Hilder requires deputies to consider the limits of their authority on an ongoing basis, together with the potential for any conflicts of interest to arise. Where likely costs will exceed £2,000 plus VAT, deputies are expected to apply to court for authorisation. If the costs involved in obtaining the quotes exceeds the value of the work itself, the deputy may make a decision on proportionality principles and detail this in their annual report to the Public Guardian.
If it is not possible to obtain three quotes the OPG will decide again on the principle of proportionality, whether to refer the matter to the court for further consideration.
Timeframes, Exceptions and Reporting
The Guidance requires existing deputies to make the application or retrospective authorisation application where the above circumstances apply, by the 1st of April 2021. If it is the case that matters involving these issues have already been completed before the judgment date of 27th February 2020, the Public Guardian will not expect the deputy to make an application for retrospective authority, although this will be based on the deputyship client’s best interests.
This guidance does not preclude a deputy from proceeding at their own risk if the matter is urgent to protect their deputyship client’s best interests, and make a retrospective application for authorisation later. Indeed, the judgment notes that consideration should be given to whether other parties might be able to act, such as statutory services, the NHS or Social Services for example, where specific authority would not be required such as in health and welfare matters. This is of particular relevance in urgent cases.
It should also be noted that albeit the deputyship client may lack mental capacity to make their own financial decision, they may have intact capacity surrounding litigation issues, so the deputy will be expected to give consideration to capacity in such instances.
In any event, the Public Guardian will expect any decisions made as a result of this judgment to be detailed in their annual report.
You can find the OPG’s guidance here: https://www.gov.uk/government/publications/new-guidance-for-deputies-in-response-to-acc-judgement/acc-and-others-guidance-for-property-and-financial-affairs-deputies-web-version