Andrew James Riddle v Parker Rhodes Hickmott Solicitors [2022] EWCOP 18

“16 Powers to make decisions and appoint deputies: general (1) This section applies if a person (“P”) lacks capacity in relation to a matter or matters concerning— (a) P's personal welfare, or (b) P's property and affairs. (2) The court may— (a) by making an order, make the decision or decisions on P's behalf in relation to the matter or matters, or (b) appoint a person (a “deputy”) to make decisions on P's behalf in relation to the matter or matters. (3) The powers of the court under this section are subject to the provisions of this Act and, in particular, to sections 1 (the principles) and 4 (best interests). (4) When deciding whether it is in P's best interests to appoint a deputy, the court must have regard (in addition to the matters mentioned in section 4) to the principles that— (a)a decision by the court is to be preferred to the appointment of a deputy to make a decision, and (b)the powers conferred on a deputy should be as limited in scope and duration as is reasonably practicable in the circumstances. (5) The court may make such further orders or give such directions, and confer on a deputy such powers or impose on him such duties, as it thinks necessary or expedient for giving effect to, or otherwise in connection with, an order or appointment made by it under subsection (2). (6) Without prejudice to section 4, the court may make the order, give the directions or make the appointment on such terms as it considers are in P's best interests, even though no application is before the court for an order, directions or an appointment on those terms. (7) An order of the court may be varied or discharged by a subsequent order. (8) The court may, in particular, revoke the appointment of a deputy or vary the powers conferred on him if it is satisfied that the deputy— (a) has behaved, or is behaving, in a way that contravenes the authority conferred on him by the court or is not in P's best interests, or (b) proposes to behave in a way that would contravene that authority or would not be in P's best interests.” (1) This section applies if a person (“P”) lacks capacity in relation to a matter or matters concerning— (a) P's personal welfare, or (b) P's property and affairs. (2) The court may— (a) by making an order, make the decision or decisions on P's behalf in relation to the matter or matters, or (b) appoint a person (a “deputy”) to make decisions on P's behalf in relation to the matter or matters. (3) The powers of the court under this section are subject to the provisions of this Act and, in particular, to sections 1 (the principles) and 4 (best interests). (4) When deciding whether it is in P's best interests to appoint a deputy, the court must have regard (in addition to the matters mentioned in section 4) to the principles that— (a)a decision by the court is to be preferred to the appointment of a deputy to make a decision, and (b)the powers conferred on a deputy should be as limited in scope and duration as is reasonably practicable in the circumstances. (5) The court may make such further orders or give such directions, and confer on a deputy such powers or impose on him such duties, as it thinks necessary or expedient for giving effect to, or otherwise in connection with, an order or appointment made by it under subsection (2). (6) Without prejudice to section 4, the court may make the order, give the directions or make the appointment on such terms as it considers are in P's best interests, even though no application is before the court for an order, directions or an appointment on those terms. (7) An order of the court may be varied or discharged by a subsequent order. (8) The court may, in particular, revoke the appointment of a deputy or vary the powers conferred on him if it is satisfied that the deputy— (a) has behaved, or is behaving, in a way that contravenes the authority conferred on him by the court or is not in P's best interests, or (b) proposes to behave in a way that would contravene that authority or would not be in P's best interests.”

“20. Restrictions on deputies (1) A deputy does not have power to make a decision on behalf of P in relation to a matter if he knows or has reasonable grounds for believing that P has capacity in relation to the matter. (2) Nothing in section 16(5) or 17 permits a deputy to be given power— (a) to prohibit a named person from having contact with P; (b) to direct a person responsible for P's health care to allow a different person to take over that responsibility. (3) A deputy may not be given powers with respect to— (a) the settlement of any of P's property, whether for P's benefit or for the benefit of others, (b) the execution for P of a will, or (c) the exercise of any power (including a power to consent) vested in P whether beneficially or as trustee or otherwise. (4) A deputy may not be given power to make a decision on behalf of P which is inconsistent with a decision made, within the scope of his authority and in accordance with this Act, by the donee of a lasting power of attorney granted by P (or, if there is more than one donee, by any of them). (5) A deputy may not refuse consent to the carrying out or continuation of life-sustaining treatment in relation to P. (6) The authority conferred on a deputy is subject to the provisions of this Act and, in particular, sections 1 (the principles) and 4 (best interests). (7) A deputy may not do an act that is intended to restrain P unless four conditions are satisfied. (8) The first condition is that, in doing the act, the deputy is acting within the scope of an authority expressly conferred on him by the court. (9) The second is that P lacks, or the deputy reasonably believes that P lacks, capacity in relation to the matter in question. (10) The third is that the deputy reasonably believes that it is necessary to do the act in order to prevent harm to P. (11) The fourth is that the act is a proportionate response to— (a) the likelihood of P's suffering harm, [and] (b) the seriousness of that harm. (12) For the purposes of this section, a deputy restrains P if he— (a) uses, or threatens to use, force to secure the doing of an act which P resists, or (b) restricts P's liberty of movement, whether or not P resists, or if he authorises another person to do any of those things.” (1) A deputy does not have power to make a decision on behalf of P in relation to a matter if he knows or has reasonable grounds for believing that P has capacity in relation to the matter. (2) Nothing in section 16(5) or 17 permits a deputy to be given power— (a) to prohibit a named person from having contact with P; (b) to direct a person responsible for P's health care to allow a different person to take over that responsibility. (3) A deputy may not be given powers with respect to— (a) the settlement of any of P's property, whether for P's benefit or for the benefit of others, (b) the execution for P of a will, or (c) the exercise of any power (including a power to consent) vested in P whether beneficially or as trustee or otherwise. (4) A deputy may not be given power to make a decision on behalf of P which is inconsistent with a decision made, within the scope of his authority and in accordance with this Act, by the donee of a lasting power of attorney granted by P (or, if there is more than one donee, by any of them). (5) A deputy may not refuse consent to the carrying out or continuation of life-sustaining treatment in relation to P. (6) The authority conferred on a deputy is subject to the provisions of this Act and, in particular, sections 1 (the principles) and 4 (best interests). (7) A deputy may not do an act that is intended to restrain P unless four conditions are satisfied. (8) The first condition is that, in doing the act, the deputy is acting within the scope of an authority expressly conferred on him by the court. (9) The second is that P lacks, or the deputy reasonably believes that P lacks, capacity in relation to the matter in question. (10) The third is that the deputy reasonably believes that it is necessary to do the act in order to prevent harm to P. (11) The fourth is that the act is a proportionate response to— (a) the likelihood of P's suffering harm, [and] (b) the seriousness of that harm. (12) For the purposes of this section, a deputy restrains P if he— (a) uses, or threatens to use, force to secure the doing of an act which P resists, or (b) restricts P's liberty of movement, whether or not P resists, or if he authorises another person to do any of those things.”

“Many of the old authorities governing the appointment of receivers and, before that, the appointment of committees of the estate and committees of the person, are still pertinent to the appointment of deputies. These authorities generally acknowledged that there was an order of preference of persons who might be considered suitable for appointment as a committee or receiver. I have called it an order of preference, rather than an order of priority to avoid giving an erroneous impression that certain people were, in the past, automatically entitled to be appointed as a committee or receiver or are automatically entitled now to be appointed as a deputy. They aren’t. The Court of Protection has discretion as to whom it appoints, however, in the past when appointing a committee or receiver, it traditionally preferred relatives to strangers. The decision of Lord Chancellor Eldon in Re Le Heup (1811) 18 Ves Jun 221 was often cited in this respect. Generally speaking, the order of preference is: • P’s spouse or partner; • Any other relative who takes a personal interest in P’s affairs; • A close friend; • A professional advisor, such as the family’s solicitor or accountant; • A Local authority’s social services department; and finally • A panel deputy, as deputy of last resort.”

“Practice direction as to costs 19.14. A practice direction may make further provision in respect of costs in proceedings.”

“Claims generally 5. The court order or direction will state whether fixed costs or remuneration applies, or whether there is to be a detailed assessment by a costs officer. Where a court order or direction provides for a detailed assessment of costs, professionals may elect to take fixed costs or remuneration in lieu of a detailed assessment.”

“1. If a Deputy Order authorises “fixed costs” without specifying at what rate, that necessarily implies the lower, public authority rate; 2. If an order authorises “fixed costs” without specifying at what rate but also authorises the deputy to seek assessment from the Senior Courts Costs Office (SCCO), that does not imply the higher, solicitors’ rate; 3. There is nothing in the PD which requires the court only to provide for SCCO assessment if it applies the solicitors’ rate of fixed costs. It is open to the court to apply the lower, public authority rate and also provide for assessment if the deputy prefers (see [51]); 4. An assessment obtained from the SCCO without authority is not sufficient to establish entitlement to claim the assessed fee. At best, the deputy may seek to rely on such assessment in support of an application for release of liability in respect of any fee charged at the assessed rate. Any lack of challenge from the OPG to a report submitted to it by the deputy does not constitute authorisation to charge the reported fee.”

“[56]. Clearly the court is not obliged to provide for authorisation of a deputy by reference to the fixed fees of the Practice Direction. Rule 19.13 expressly sets out alternative options of remuneration at a "fixed amount" or a "specified rate." However, each of these alternatives may be perceived as having some practical disadvantages. Authorisation of remuneration of a "fixed amount" means it is more likely that there will need to be future applications to court (with attendant cost to P) because in a particular year the vicissitudes of life present more demands on the deputyship than usual, or simply to update the amount to reflect rising costs over time. To some extent these difficulties can be addressed by index-linking (as in Re AR) but the orders, and the steps necessary to quantify authorised fee, necessarily become more complex. Authorisation of a "specified rate" on the other hand does not inherently carry any limit on how much of that specified rate would be reasonable. These disadvantages are mitigated if remuneration is by reference to the Practice Direction fixed rates, which are updated periodically.”

“the Deputy is entitled to receive fixed costs in relation to this application and to receive fixed costs for the general management of Margaret Celia May’s affairs at the prevailing public authority rate”

“a. DOLS work required in looking to obtain authority to sell property. DOLS work now required by the CoP when looking to sell client’s properties now results in the sale process taking substantially longer, due to the fact that we are required to obtain authority to sell the property, even though we request such authority within the initial application. This obviously results in significant further work, often taking up to a year or two to obtain the requisite authority. b. Instructing property management company to market/sell property c. Vacant property insurance put in place d. Monthly vacant property inspections e. Property Valuation Appraisal report commissioned f. Fencing works required on property to be undertaken. Sourcing of trade people, quotes etc g. Maintenance of property eg. gardening h. Dealing with utility companies, local authority, care homes i. Dealing with neighbours, family etc j. Handling offers put forward k. Organising clearance, clean of property l. Ensuring personal items retained for client and sent to them in care m. Having items of value auctioned”

“The order made on the 26th September 2018 stands. The application for authority to seek assessment of costs is refused”