Change to Costs Rules in Court of Protection Practice

For those who are unaware, the Court of Protection allows a person to be appointed to take care of the financial affairs or health and welfare of a vulnerable person. This ranges from children through to elderly clients who have lost capacity and includes people who may have been injured and rendered unable to take care of their own affairs, be it financial or relating to their health decisions.

Personal applications can be made for a family member to be appointed to look after the affairs of a loved one or alternatively a professional such as a solicitor can be appointed. The advantages to appointing a professional is that the vulnerable person has an independent person acting for them who has no interest beyond the professional aspect and has their best interests at the forefront of their actions. The disadvantage is that, as with most things, fees are incurred for professionals to manage the ongoing affairs on an annual basis.

Often, a family member or members will be appointed so as to save on these costs and perhaps use those saved costs for the further benefit of the vulnerable person. However, this does not come without its problems as very often family members may not agree on a course of action to take and may consider one course of action to be less beneficial than another. This inevitably can lead to arguments within the family and the Court of Protection becoming involved so as they can make a judgement to resolve the issue.

Under the current rules, the costs of this type of disputed application are borne by the vulnerable person’s estate. However, under the changes being considered Judges would be given greater scope to direct the family members involved in the dispute to pay the costs. It would appear that this change is widely supported by such organisations as STEP and Solicitors for the Elderly and senior members agree the Court should have more discretion over costs, especially in extreme cases, where it would appear the vulnerable person’s estate is being abused by their deputy.

The hope is that these changes will give vulnerable people more protection bringing wasteful legal actions at their expense to an end. The changes serve to highlight the fact that very often, and especially in complex cases, the best practice is for a professional to be appointed as a deputy so as to reduce the likelihood of this type of dispute arising.

For further information please don’t hesitate to contact Kirsty McNulty in our Wills, Probate, Tax and Trusts department or alternatively call Freephone 0800 975 2643 or send any question through to Forbes Solicitors via our online Contact Form.

Kirsty McNulty

About Kirsty McNulty

Kirsty McNulty is a Solicitor within the Wills, Probate, Tax and Trust department at Forbes Solicitors. Kirsty’s blogs cover her specialisms of drafting wills and trust Wills, Lasting Powers of Attorney, various Trusts such as PI trusts and Asset Protection Trusts, Court of Protection applications and all other areas of private client law. Kirsty specialises in assisting elderly and vulnerable client’s and is a fully accredited member of Solicitors for the Elderly.
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One response to Change to Costs Rules in Court of Protection Practice

  1. Rosans Hughes says:

    I am a 70 year old widow and I have a son who was diagnosed with schizophrenia almost 20 years ago. He is very well, managing his life in general for the past 8 years. He does not work, he receives benefits including house benefits. He leaves in a nice flat in s good area (private landlord). I have 2 other sons.
    My own situation: I had breast cancer, hopefully all control but I need to think about inheritance issues.
    I own the terrace house I live in west London and a one bedroom flat in south London, still being repaid in mortgage instalments ( let at the moment). Both properties combined will be worth probably a bit more than the allowed threshold for tax purposes ( husband and wife).
    My son who receives benefits ,I feel, should be entitled as the others to his share of our ( late husband and myself) goods/inderitance after my death. I want to protect this as much as possible. I would also like to be sure that he stays in accommodation within the Borough he is used to in London and in a good area/housing as I feel this is key to his continuing stability.
    Could I give him a small flat whilst I am alive? ( I know the queue for his own council place is quite long and he is not priority being a single male, although he believes that he will be offered his own accommodation in a not too distant future. There is a mild pressure from the current landlord for this to happen.
    Could he carry on receiving monthly benefits owning his own accommodation and forsaking his house benefit?
    As for his upkeep, the benefits he receives albeit very much appreciated they don’t cover some expenses and overal he needs could be fulfilled with not much more monthly cash in hand. Can this be set up for him to receive after my death? I have read about a Trust, I could possibly ask one of my sons to help, or I may consider a solicitor to avoid giving extra work to my eldest.
    Could you advise me? Thank you

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