Re ACC and Others: a guide for Deputies
The Court of Protection’s main focus is protecting P (the protected party) and their best interests. With this at the forefront of its mind, the law is forever evolving.
ACC and Ors (property and affairs deputy; recovering assets costs for legal proceedings) [2020] is a case is widely known within the Deputy community, but for those who are new to deputyship, this blog will hopefully provide some insight into what it is, how it applies to you and what you, as Deputy, will be expected to do and when.
What happened in Re ACC and Others?
In 2020, a local authority asked the Court of Protection to decide whether a property and affairs Deputy who is a solicitor could instruct their own law firm to conduct litigation for the protected party (P).
The judgment related to three individuals (ACC, JDJ and HPP), each of whom had a Deputy for property and affairs. It came to light that their deputyship orders did not contain any specific provision for the Deputy to instruct a lawyer or to conduct any legal proceedings on behalf of P.
The points being considered in this case were whether a professional Deputy can do the following and when:
- Use P’s funds to cover costs which have been or are likely to be incurred in legal proceedings; and
- Instruct a law firm with which it is associated, and recover the costs from P.
The judgment
A Deputy’s authority derives from the initial Court Order appointing them. Being appointed as P’s Deputy does not automatically give the Deputy global authority over P’s finances.
The deputyship will often include several restrictions, such as:
- No authority to purchase/sell property.
- No authority to litigate (which would include instructing other solicitors, such as Special Educational Needs (‘SEN’) lawyers or family lawyers) on P’s behalf, without seeking further, specific authority to do so from the Court of Protection.
If the need to instruct another lawyer on P’s behalf arises, this is where Re ACC comes into play.
Defining ‘general authority’
Ultimately, the judgment in this case defined ‘general authority’ as including ‘non-contentious’ tasks such as preparing tax returns*, managing leases, property conveyancing*, business contracts and associated employment contracts, seeking advice on tenancy liabilities and arranging suitable care provisions, all of which fall within the remit of the Deputy and do not require further authority from the Court.
*Unless you are a professional Deputy seeking to instruct your own firm, with costs anticipated to exceed £2,000. In cases such as this, Court authority is still needed to address the potential conflict of interest issue.
What falls outside of general authority?
In relation to tasks that fall outside the general authority, it was determined that further specific authority from the Court of Protection would be needed.
Where this concerns matters such as health and welfare, the Deputy will either need to seek authority to act on P’s behalf in this regard or, and this is often the more likely of the two, seek authority to reimburse third-party costs. For example, if P’s parents have instructed a SEN expert and are seeking reimbursement from P’s funds on the basis that the work they are doing on their behalf is in their best interests and for their benefit.
What does Re ACC mean for Deputies?
When a Deputy needs to instruct a specialist to provide advice or carry out a legal task, and the costs are likely to exceed £2,000 plus VAT, the Deputy will need to apply to the Court of Protection for permission to do so.
It would not be proportionate to apply to the Court if the fees are anticipated to be less, as the cost of the application itself would quickly outweigh the cost of instructing the expert. Details of this decision should be disclosed as part of the Deputy’s annual OPG report.
Making an application for legal or other expert advice
As part of this application, the Deputy needs to:
- Provide three quotes from different companies (if you are a professional Deputy, one of the quotes can be from your own firm).
- Set out which professional you would like authority to instruct based on the quotations received, why you think instructing them would be in P’s best interests and further justification if the professional you are proposing to instruct is not the cheapest. It may be that they have better availability or prior knowledge of P that would speed up the process, for example.
The quotes should be obtained from firms of a similar size to ensure they are fair comparisons.
If you are proposing to instruct your own firm, you would need to address the potential conflict of interest point and include further detail as to why instructing them is in P’s best interest when compared to the alternatives.
Cost estimates aside, the content of the application should include (but is not limited to):
- Capacity considerations;
- Details showing why the advice is needed;
- What work needs to be done;
- Why it’s in P’s best interests;
- Any relevant reports (such as an EHCP report and initial advice from a SEN expert);
- What impact it will have on P if authority is not granted, and why the proposed option is the least restrictive option;
- If a professional Deputy, a request for authority to incur fees and authority for these fees to be assessed, and
- The urgency of the matter.
Capacity: it’s time and task-specific!
Remember, if a person has the capacity to give instructions for a specific piece of work, they will also have the capacity to agree on the related costs. It is therefore important to consider this at the outset before incurring any unnecessary costs!
What to do when it’s urgent
Despite best intentions, it is not always possible to seek authority in advance. Due to the volume of applications being received by the Court of Protection and its capacity to deal with them, the turnaround for authority being granted often takes months, and it is not necessarily going to be in P’s best interests for matters to be placed on hold in the meantime.
With that in mind, the Deputy may find themselves in a position of needing to proceed with authority pending, ultimately making an application for retrospective authority. As part of this, the Deputy needs to decide whether they are happy to take the financial risk in doing so, because there are no guarantees that authority will be granted, as it will be reviewed on a case-by-case basis. If you are a professional Deputy, this includes a risk as to your own professional costs for dealing with the issue, as, if authority is not granted, the Deputy is not authorised to utilise P’s funds to settle their fees.
Applying for retrospective authority
When making an application for retrospective authority (which should be done as soon as the Deputy is aware that authority is needed), the Deputy will need to explain why the matter is so urgent that authority could not be sought beforehand and why it was in P’s best interests to proceed without it.
A common example of this is when advice surrounding P’s EHCP is needed. This is largely down to the fact that, when an EHCP review is completed and found to be ‘unsatisfactory’, school attendance and the actions needed to resolve EHCP issues cannot be placed on hold pending Court authority. It is vital that suitable provision is put in place for P as soon as possible, and the Deputy will need to weigh up whether it is in P’s best interests to wait for authority, leaving P with an unsuitable EHCP in place in the meantime, or proceed and seek authority retrospectively.
How we can help
This is very much a snapshot of what Re ACC means for a Deputy and, as with all Court of Protection applications, the approach and outcome will very much be on a case-by-case basis.
In summary, it comes down to whether the action needed to be taken falls within the Deputy’s authority, particularly the general authority granted within the Court Order.
Get in touch with our Deputyship solicitors
If you are a Deputy who is unsure about whether you have the authority to address a certain issue on P’s behalf, it is a good idea to speak to a Court of Protection solicitor so that, if an application does need to be made, you can do so confidently.
Call our specialist Court of Protection team on 0117 325 2929 or fill out this enquiry form, and we will be in touch.
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- Leigh McDonough
- Legal Director
