Blood is thicker than water

Many private client lawyers acted as professional receivers before deputies were introduced by the Mental Capacity Act 2005. Although the Act was perhaps intended to create more lasting powers of attorney so that deputies were needed less, there is still a large volume of deputyship work around. This arises from three principle sources: personal injury and clinical negligence cases, family disputes and unbefriended adults.

A lot of firms have happily taken on professional deputyship work as an automatic extension of a private client practice. In my own case, the deputyship work expanded to such a degree that I have actively shed all other non-deputyship work. I have acted as a deputy/receiver for many hundreds of clients for more than 20 years. Many people perhaps see deputyship as a replacement for executorship work. However, there is one big difference. Your client is still alive and it is his or her best interests ?that are paramount.

Again, a lot of people view deputyship work as acting for elderly clients with dementia. This is a very small percentage of my own caseload. An elderly person in a nursing home may present little challenge for many of us. However, the deputy always has to consider the client’s best interests, yet this client cannot express those interests to you. Here is where the problems can start because you have a duty under both the Act and the Code of Practice to always act in the client’s best interests when making any decisions for them. Before you can do that, you have to know your client to ascertain what might be in their best interests. Furthermore you cannot make decisions on matters where the client retains capacity to make his or her own decisions.

Limited responsibility

Unlike the pre-Mental Capacity Act receivership order, a deputyship order clearly states that the authority of the deputy is only limited to making decisions that the client lacks capacity to make. Capacity is time- and decision-specific so that an assessment of capacity needs to be made more ?often than you might think, especially with someone where capacity is waning rather than having completely disappeared.

Professional deputies are not appointed where there is an obvious family candidate: they are not appointed in straightforward cases. The presence of a professional deputy usually indicates there are ‘issues’ that need the role of deputy separating from the family. Therefore it’s inevitable you will have to deal with family members as well. Or is it?

What about client confidentiality? What about best interests? Family will have their own vested interests possibly. Even so, the Code of Practice suggests that family, among others, should be consulted when trying to assess what is in an individual’s best interests.

However, consult does not mean take instruction from them. It means that their comments have to be considered. Family can often have a proprietary interest in the affairs of their parents, spouse or siblings, your role as deputy, however, is to act in the client’s best interests. You have to make decisions in the client’s best interests, which are patently not in the interests of the family members. That interaction can become very wearing.
Also it can run up a lot of costs. Is it right that the client should pay? What does the Supreme Court Costs Office (SCCO) say? Only that costs should be proportionate especially in the typical elderly case where no money has been received to pay for ?these costs.

Real money

In personal injury and clinical negligence cases ?where a professional deputy is required, the costs of the professional deputy are claimed as part of the special damages of the claim and can amount to a significant item, often of six figures for a lifetime. However, where you are appointed to deal with an elderly person’s affairs, you are actually spending ‘real’ money on your costs. I believe the SCCO is starting to take a different approach in these cases: proportionality is the big issue, rather than the actual amount of the time spent. You have to set up your department appropriately.

Furthermore, over time funds will often ?become depleted, and then you will be only able to recover fixed fees. The capital level at which these fixed fees come in is £16,000. Once you hit the threshold you can only recover 4.5 per cent per annum of the capital and that capital figure excludes the value of any property the client lives in. I have several cases that fall in to that category and you will not be surprised that the income generated is significantly less but the work may be no less. It is not really open to you to walk away from the deputyship when the costs decline, though.

If you are on the panel of approved deputies, you also need to be prepared to work pro bono as a matter of course. So, when taking a deputyship, you need to be prepared for the long haul and for the possibility of working for much-reduced fees at some point. Given that you will probably have worked for years for this client, I hope you would be willing to do this. It is about the individual, and over time you do develop relationships where, hopefully, the interests of the client are paramount. They are real clients, not faceless files being processed through a machine.

Cautionary tale

One further note of caution: you can choose your clients but you cannot choose their families. Many families see the professional deputy as an interloper. The deputy is someone whom, in their eyes, the Court of Protection has imposed upon them. Unless the family get the decision they want, they see everything the deputy does as wrong and to ?be challenged.

While to some extent this goes with the territory, nevertheless it can sometimes reach fever pitch where you end up using a highly disproportionate amount of your time not dealing with the client but dealing with the family.

As mentioned, this can become wearing, but it can go further. It could lead to complaints to the firm and to the Office of the Public Guardian (OPG), which are wholly unjustified but have to be dealt with. I have had several cases for which the OPG have formally investigated complaints against me. Although I was cleared on all occasions, the time and effort spent dealing with these matters can be significant. I have had protests held in and outside my office and I was the subject of a defamatory website. I shrug these off because I have to think about the client first.

Positive outcome

Notwithstanding all of that, I still enjoy doing deputyship work and find, in general, the client ?group very rewarding on an emotional level. ?If you remember that this is an extremely vulnerable client group for whom you are acting without ?their instructions but rather under a court order, ?then as long as you don’t lose sight of the needs ?of the client being paramount, this is work ?where we as a profession should look to expand ?our involvement.

The downsides are there but, for me, they are far outweighed for me by the positives. The OPG is concerned at the virtual monopoly solicitors have in the role of professional deputy. They are keen to see choice widened. However, it is difficult to see who could easily replace us in this area. Rather than others take on the work in our place, perhaps we should show that we have the right moral and professional attitude to this work.

Hugh Jones is a partner at Pannone. He is head of the Court of Protection group and specialises in all aspects of mental capacity work