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ACC & Others: three years on…

Posted: 13/04/2023

It has been three years since the judgment in ACC & Others [2020] EWCOP 9 (ACC) was handed down by a judge of the Court of Protection (COP), Senior Judge Hilder. The judgment itself concerned the authority required by deputies to obtain legal services, and the proper management of conflicts of interest; guidance from the judgment has now been incorporated into the amended deputyship standards, which were published by the OPG (Office of the Public Guardian) on 13 February 2023. 

Rachel Taylor, senior associate in the Court of Protection team, reflects on the lessons learnt and frustrations managed (and broadly overcome) following the judgment.

The role of a professional deputy

The day-job of a professional deputyship team is varied, challenging and hugely rewarding. It is an area which, on the one hand, requires robust processes and endless checklists, to ensure professional standards are complied with, whilst simultaneously requiring flexible thinking (and working) to field the unexpected curveballs and consider what is in an individual clients’ best interests. It is certainly not an area that can, or should, be practiced prescriptively.

It is worth remembering this context when considering the initial reactions to the judgment. Whilst the intent, in protecting P’s best interests and maintaining high standards in the profession, was widely acknowledged, it was felt that ACC was a rather blunt instrument to achieve such a complex aim!

A reminder of the judgment:

In terms of the practical impact for professional deputies, Senior Judge Hilder effectively dealt with two separate issues:

  • (potential and actual) conflicts of interest for a professional deputy when instructing his/her own firm; and
  • the scope of a financial deputy’s general authority.

The judgment can be found here.

Some of the important points for professional deputies were: 

  • Guidance on what tasks the ‘general’ authority of a property and affairs deputy encompasses.
  • The general authority conferred on a financial deputy doesn’t extend to conducting litigation of any kind on behalf of P, other than an application in respect of P’s property and finances in the COP.
  • Even for litigation related to property and finances, a property and affairs deputy would only be permitted to go as far as writing a letter of claim without needing further authority from the COP.
  • A property and affairs deputy does not have the authority/remit to make welfare decisions on P’s behalf. If health and welfare issues arise the deputy should bring these to the COP’s attention and ask for further directions.
  • Where a deputy wishes to instruct his/her own firm, three quotes should be obtained before making a best interests decision to do so on P’s behalf.
  • If anticipated costs are likely to exceed £2,000 + VAT (per annum), a professional deputy cannot instruct their own firm without first asking the court for specific authority.
  • Authority is needed to pay a third party’s costs even if that third party is a family member.
  • Where P has capacity to give instructions for a specific piece of work, they have authority to agree the costs.

Reflections on the judgment

In an area of law where the goalposts are constantly moving, the initial confusion regarding how to interpret the judgment caused some exasperation! Combine that with the inevitability of additional applications to the COP and it is safe to say that, at the outset, many felt a bit apprehensive.

Three years on, the judgment has undoubtedly resulted in additional work for professional deputies, more applications to the COP, and therefore additional costs for P.

There continue to be logistical difficulties when instructing our own firm. We have found this particularly in relation to employment issues: historically these were often dealt with by our  knowledgeable and experienced employment team, who charged guideline rates and submitted their costs for assessment by the Senior Court Costs Office. They had built up substantial knowledge of historic employment issues and, perhaps more importantly, the context and dynamics of a particular matter.

We have been able to mitigate this to a certain extent, by asking the court for authority in advance.  However, we have still encountered difficulties in respect of ‘scope creep’ ie where we have authority to instruct our own firm, or have made a best interests decision to do so on the basis of anticipated costs of less than £2,000, and unexpected issues then arise. This means the advice required becomes more protracted and extensive – necessitating further applications to the COP. Despite best efforts, some issues can’t be pre-empted.

It is also clear that there will still be occasions when best interests decisions have to be made for P that don’t fall neatly within the ACC parameters, eg where matters are so urgent that authority to litigate cannot be obtained before taking action, or where urgent review of/input in respect of a child’s education, health and care plan (EHCP) is required. Professional deputies have to consider taking this action at their own risk to enable them to act in P’s best interests – this is referred to in section 1f of the OPG deputyship standards.

Whilst it has been useful to have a reminder of the scope of the role of a financial deputy, the judgment has not changed the fact that the demarcation between financial and welfare questions is often somewhat fuzzy – unfortunately life doesn’t fit into neat boxes. Professional deputies must navigate these blurred lines with great professionalism, care and compassion.

The judgment in the context of an evolving COP industry:

Clients are usually vulnerable, often delightful and invariably complex – they are human beings after all, and have frequently experienced immense personal challenges. As COP practitioners, we have to think on our feet and come up with pragmatic and sound solutions for our clients – we also have to forward plan to ensure we are considering case law and guidelines, so that we can do what we need to do for P, when we need to do it. 

One big positive is that the judgment has demonstrated the value of cross industry support and collaboration – in particular the benefit of forums like the PDF (Professional Deputies Forum) in advocating for the need for clarity and guidance for the industry, and in providing a sounding board for its members when navigating difficult issues.

The judgment has also served as an important reminder of the need to consider conflicts of interest (real or perceived) and to carefully document why decisions are in P’s best interests.

The COP industry has grown and changed massively over the last 10 years. It is perhaps easy to underestimate the significance of these changes when they are happening around you. The ACC judgment reminds us that being a deputy is a privilege and, also, a huge responsibility – one owed both to P and, in the case of professional deputies, to others in the COP industry.

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Penningtons Manches Cooper LLP is a limited liability partnership registered in England and Wales with registered number OC311575 and is authorised and regulated by the Solicitors Regulation Authority under number 419867.

Penningtons Manches Cooper LLP