Court of Protection fees refund

The Ministry of Justice has introduced a refund scheme relating to court fees, including the Court of Protection.  For the Court of Protection, the scheme relates to those who paid court fees between 1 April 2016 and 31 March 2018 for:

  • applications
  •  appeals

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Capture1In addition, if you paid a hearing fee between 1 April 2017 and 31 March 2018, you may also be eligible for a refund.

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Capture2For more details, see here. and the guidance document here.

Queries regarding the scheme should be directed to the helpdesk as follows:

Telephone: 0300 1233077

Email: Civil_Refunds@justice.gov.uk.

E-Filing for the assessment of Professional Deputy costs is compulsory from 20.01.2020

Professional Deputies are entitled to general management costs which are reasonable and proportionate to the total value of the client’s estate. The amount of work done and that any work done should be done by the appropriate fee earner. Last but not least, the professional deputy is required to demonstrate they are acting in their client’s best interests. Professional Deputies who are appointed by the Court of Protection are required to submit estimates of costs and bills for assessment at the end of a reporting period.

From Monday 20 January 2020, deputies are required to send a Bill of Costs, N258 and authority to assess (deputyship order) through the e-filing system in PDF Format.

Bills of costs submitted in paper form will be rejected by the Senior Courts Cost Office (SCCO) after this date. Any files submitted after this date in paper form will be returned.

How to E-File

To E-File, your firm should register as a user on the E-Filer system using an email address and password.

You can register by clicking here – scroll to the bottom of the page and select register as an e-filer.

Guidance on the SCCO e-filing system works is here.

Guidance from the HMCTs is also available here.

Costs that can be claimed

Practice Direction 19B sets out the fixed costs that may be claimed by solicitors and office holders in public authorities appointed to act as deputy for P.

You can find the Practice Direction here.

Fees

Payment can no longer be made to the SCCO by way of cheque. The firm must have a PBA or debit payment facility.

To find out more about applying for  PBA accounts click here.

[This post was written for us by Hannah Nicholas, @thecapacitycat]

 

Administering Court of Protection appeals

The Vice-President of the Court of Protection, Hayden J, sent a letter on 26 November 2019 to other judges of the Court of Protection, reproduced here, in which he noted that:

One of my most surprising discoveries on becoming V.P. was that the Court of Protection did not have a clearly structured system for administration of appeals. The route by which cases came to be heard on appeal was haphazard and inconsistent. Some appeals simply got lost and others took an unconscionable time to reach a hearing.

The letter sets out the internal procedure for appeals, in particular, for appeals from Tier 2 (i.e. Circuit Judges) to Tier 3 (High Court judges).

The Practice Direction governing appeals, PD20A, can be found here.

Accredited Legal Representatives Pilot

The Law Society have been in discussions with HMCTS regarding the issues related to the appointment process for ALRs, which has been far from smooth.

In a response to the concerns raised, HMCTS has agreed to run a pilot as of 1 April 2019.   As of this date, where a nominated ALR is already involved within proceedings, they can seek appointment within the proceedings and be appointed by the judge. Where an ALR seeks to be nominated within application, they will need to provide reasons for their appointment to the judge.

If there is no nominated ALR within the proceedings, the judge will continue to appoint ALR’s from the ALR list.  

The pilot will run for a period of 3 months, where after HMCTS will take a view as to whether allowing direct nominations has been successful.  The Law Society  are encouraging all ALRs to put themselves forward for direct nomination during the period of the pilot, in order to demonstrate the effectiveness of the process.

The current list of ALRs can always be found on the Law Society website here.

CoP Application and appeal fees reduced (a bit)

The snappily named Court of Protection, Civil Proceedings and Magistrates’ Courts Fees (Amendment) Order 2018, coming into force on 25 July, will reduce the fees for applications from £400 to £385, and for appeals from £400 to £320.

The reduction to these fees follows, according to Parliamentary Under Secretary of State for Justice Lucy Frazer QC MP “a thorough and detailed review undertaken by officials in the Ministry of Justice into the cost of these proceedings. Our review has identified a number of cases where the fees charged were above full cost recovery levels.”   It is not clear at this stage whether those who have been charged the higher sums in the CoP will also benefit from the refund scheme that is being applied in relation to excess fees identified in other areas.

 

 

Accredited Legal Representatives Scheme Launched

We are very pleased to confirm that on 2 April 2018 HMCTS introduced the process of appointing accredited legal representatives (ALRs) of the court’s own motion, in appropriate cases.  This means that the “menu” of options for representing P, as set out in COPR r1.2 is now complete.

We hope that the court will take advantage of the cadre of ALRs who have gone through what appears to be the testing process of securing appointment to the Law Society’s Mental Capacity Accreditation Scheme.

We’re aware that some practitioners have expressed concern that, in circumstances where P has been referred by his or her RPR to a solicitor who has secured legal aid, the court may then appoint a different solicitor as ALR.  There are understandable anxieties about lack of continuity for P and duplication of work.

We suggest that there is a pragmatic solution.  A solicitor who has been working with P, perhaps after a referral by an RPR, and who then issues a section 21A challenge could file a statement alongside Form DLA which sets out the solicitor’s involvement with P so that the court is aware of the issue of continuity when deciding which of the rule 1.2 options to select.  An accredited solicitor who wishes to be appointed as such could also file a COP9 requesting appointment.

We are very interested to hear about the experience of practitioners as the new scheme gathers pace.

Foreign powers of attorney – an unfortunate judicial wrong turn

Re JMK [2018] EWCOP 5, HHJ Hilder, faced with two litigants in person, has taken an unfortunate wrong turn as regards the basis upon which ‘foreign’ (i.e. non English & Welsh) powers have effect in England and Wales.

Two litigants in persons (the daughter and son-in-law of the donor) sought recognition and enforcement of a Canadian “Continuing Power of Attorney for Property” as a “protective measure” pursuant to paragraph 19 of Schedule 3 to the MCA 2005.  It is not entirely clear from the judgment why they did so, although there is mention of a family legal battle, presumably in Canada.   It is likely that there must have been some property in England and Wales that the holders wanted to administer and it can perhaps be assumed that they were having difficulty doing so without a court order.

Although the judgment does not say where power was made, it notes that the power was headed “[m]ade in accordance with the Substitute Decisions Act 1992.”  This suggests that the power was made in Ontario where, although it appears that this was not brought to the judge’s attention, a Continuing Power of Attorney for Property does not need to be registered before it takes effect, either with a court or with an administrative body the equivalent of the Office of the Public Guardian in either England & Wales or Scotland.  There was no evidence of the donor’s capacity at the date the power was executed although there was evidence from the care home where she lived in Canada that she lacked capacity thereafter.

The two parties before SJ Hilder were unrepresented, and she noted that she did not have the benefit of legal submissions.  The only authority that she found on Schedule 3 was the decision of Hedley J in Re MN (Recognition & Enforcement of Foreign Protective Measures) [2010] EWHC 1926, concerning a protective measure in the form of an order made by a California court.

SJ Hilder, upholding (on reconsideration) the refusal of the District Judge to recognise and enforce the power of attorney as a protective measure, noted that:

17. […] reference to ‘protective measures’ in Schedule 3 is intended, and generally understood, to refer to arrangements that have been made or approved by a foreign court. It may not be spelled out explicitly but the language of paragraph 19(3) in particular confirms that intention and understanding: each of the circumstances in which the mandatory requirement can be disapplied clearly envisages court proceedings. I have not found any authority which casts doubt on that understanding. JMK’s Power of Attorney has been through no court process at all. It is not even subject to a system of registration. It therefore does not fall within the general understanding of the term ‘protective measure’ for the purposes of recognition by this Court pursuant to Schedule 3.

18. More widely, it seems to me that PH’s understanding of the Power of Attorney at the time when it was granted (as set out in paragraph 16(a) above [“at the time of issuance, the POA was not a protective measure other than [JMK] was not used to managing household finances… we offered to help but, in order to do this properly, we needed her authority which was deemed to be a Power of Attorney”] captures a more accurate understanding of the nature of the instrument executed by JMK. If validly executed, a Power of Attorney is better characterised as an exercise of autonomy (even if it provides for a time when the donor is no longer capable of autonomous decision-making) than as a “protective measure.”

SJ Hilder concluded by noting that it remained open to the applicants to apply to be appointed as property and affairs deputies in this jurisdiction.

Comment

It is very unfortunate that SJ Hilder did not have benefit of legal submissions on this important issue, because she did not have her attention drawn to the fact that she was being asked the wrong question by the applicants, and that she should have been analysing the position not by reference to whether or not the power of attorney was a protective measure for purposes of Part 4 of Schedule 3, but rather by reference to the provisions of Part 3.   As explained in more detail in a discussion paper I prepared some years ago here (paragraphs 31ff), the general rule is that powers of attorney which are valid according to the law of the habitual residence of the donor are directly effective in England & Wales.

It is irrelevant, therefore, whether or not ‘foreign’ powers are also capable of being protective measures for purposes of Part 4 of Schedule 3, which was the focus of SJ Hilder’s analysis.  The question was whether the Ontario power was valid according to the terms of Ontario law (assuming that JMK had been habitually resident there at the point of granting the power.

 I should perhaps also note, however, that whilst it is undoubtedly correct that a foreign power that has not been registered with an administrative body or a court cannot be considered a protective measure, the position is now more nuanced than it was at the time I drafted the note set out above in 2014.    In a very unusual step that we reported upon in the October 2017 Mental Capacity Report, the Explanatory Report to the 2000 Hague Convention on the International Protection of Adults (which underpins Schedule 3 to the MCA 2005) was issued in a new and revised edition, available here.   In addition to the correction of a few typos, the new and revised edition includes in particular a modification to paragraph 146 made by the Rapporteur, Professor Paul Lagarde relating to the confirmation of powers of representation (powers of the attorney and the like).   The new paragraph reads thus:

The concept of the confirmation of powers must give every guarantee of  reliability and be seen in the light of legal systems which make provision for this confirmation and place it in the hands of a particular authority, judicial in Quebec, administrative elsewhere. The first version of this report, which was based on a reading of the Convention text, set forth that this confirmation is not a measure of protection within the meaning of the Convention. If this indeed were the case, there would be no need to mention it alongside the measures of protection in Article 38. However, some delegations have since asserted that this analysis is not one which, according to them, flows from the discussion, difficult as it was. […] According to this view, a confirmation could constitute a measure of protection within the meaning of Article 3 and it could only be given by the competent authority under the Convention. A consequence of this might be that, if the adult has, in accordance with Article 15, paragraph 2, submitted the conferred power to an applicable law other than that under which the authorities have jurisdiction under the Convention, the representative risks being deprived of the possibility of having his or her powers confirmed, for instance, by the competent authority of the State whose law is applicable to the power of representation.

In other words, the Explanatory Note makes clear that the intention underpinning the Convention – and hence Schedule 3 – is that registered power (for instance a Scottish power registered with the Office of the Public Guardian) may well be capable of an application for recognition and enforcement.   That could never have benefited an attorney under an Ontario power, but the position may well be different in relation to many other types of powers.

Importantly, however, it is equally – if not more – unfortunate that SJ Hilder did not have drawn to her attention the provisions of (at the time Part 24, but now Part 23) of the Court of Protection Rules, which provide in Rule 23.6 for a standalone application to be made in any case where there is doubt as to the basis upon which the attorney under a foreign power is operating.  This is what the applicants in this case should have been seeking and the court considering, and it is the course of action I would strongly advise that any attorney under a ‘foreign’ power takes in future in the case of recalcitrant institutions in England and Wales.  I would hope, further, that the opportunity arises swiftly for either SJ Hilder or another judge of equivalent or greater seniority to clarify the position with the benefit of submissions based upon the matters set out above.