Court of Protection - From Litigation to Deputyship

The Court of Protection and Serious Injury Teams at Shoosmiths held a joint seminar ‘From Litigation to Deputyship’ on 11 March 2021. A recording of the webinar can be found below.

The day comprised sessions on the litigation process, how to maximise settlement then looked in detail at the Case Manager’s role before moving on to sessions around how the deputyship team support clients and key areas of consideration when acting as a professional deputy.

Case Management – Tips and Pitfalls when running a successful Multi Disciplinary Team (MDT). Sue Bowler and Zoe Scott of Bush & Co discuss the essential considerations when assembling a MDT and the pitfalls if due care isn’t taken.

• When considering how to choose a case manager, the litigation solicitor or deputy needs to consider the relevant experience of the case manager, check they are Care Quality Commission (CQC) regulated, available to meet the needs of the client and that they will work well with the client.
• When assembling an MDT, the case manager is looking to work with the client to get to know them, their wants and needs. From this starting point, a team can be assembled which could include physios, occupational therapists, support worker, neuropsychology/neuropsychiatry, solicitor, even a chef a driver and a dog walker depending on the client’s needs.
• Funding is a key issue to keep at the forefront of everyone’s minds. What are the limitations on costs, are estimates accurate and kept up to date and what is the budget? The risk if services are provided in excess of the budget are that people can’t be paid for their services to the client.
• From a practice point – all notes on therapy and case management are disclosable to the defendants during litigation proceedings. Post litigation, that right ceases. With this in mind, litigation and therapeutic matters should not be included on the same communication as otherwise, emails and letters will need to be redacted before disclosure takes place.
• Keep any MDT under review – if the initial goals are met, can new goals be set, have there been disagreements or has the relationship run its natural course? If so, review and amend the make up of the team.

The Role of Deputy Post Settlement with Lucy Taylor - An overview and introduction to the types of considerations clients face post settlement and at the start of a deputyship.

• Clients who have had several years working with the litigation team often experience a feeling of loss when it is all over. Our Court of Protection team are there to see what the client’s needs are post settlement and to offer some structure and support around what their future looks like.
• This often involves looking at their care needs, finances, accommodation, working with the MDT team and crucially listening to the client to work out what their needs are.

Family / Gratuitous care payments with Rebecca Bristow

• Family care payments are considered post settlement where families are providing care which goes above and beyond the usual call of duty to a relative. Such payments are usually at the rate of 20-25% less than commercial care costs as they are gratuitous so not considered income by HM Revenue & Customs so aren’t subject to income tax.
• When a professional deputy is appointed, we consider whether it is in the client’s best interests to implement family care payments. An alternative to consider would be whether the family member is employed by the client but this can shift the family dynamic to employer/employee which isn’t always appropriate.
• Where a lay deputy is appointed, Court approval is required if they are paying themselves or a person closely connected to them.
• In all cases, the starting point to consider is the settlement – what provisions are there and what changes have occurred post settlement. The client’s approach to accepting external care is a factor as is the wants and needs of the client and their immediate family.

Accommodation considerations with Lauren Miner

• The recent case of Swift v Carpenter has provided practitioners with a different calculation when quantifying accommodation costs as part of a litigation claim. This provides a more favourable calculation than the previous case law but this is only one case so it may be changed and adapted as more cases work though the court system.
• When considering accommodation, it is worth considering outsourcing to an accommodation expert. This is a cost to the client but the benefits of using an expert are their time and ability to draw on their experience when looking at potential properties and adaptations required.
• If a case manager is involved, play to the case manager’s strengths so work with the experts rather than the case manager trying to shoulder the whole accommodation project.
• The Occupational Therapist should be involved at the earliest stage to look at the accommodation and see if the proposed property can work for the client. If the Occupational Therapist isn’t an accommodation specialist, consider instructing a specialist.
• Don’t disregard rental properties, it can be a good opportunity to explore whether a property works for the client without having the financial outlay of purchasing a property.
• Consider future proofing – if the client is a child, what are their needs now and in the future. Adaptations are expensive and might only be carried out once so make sure longer-term considerations are at the fore.

Wills and planning for the worst with Helen Gott

• The starting point is whether the client has an existing Will, and if so, does it still work for the client?
• When clients lack capacity, we consider if a Statutory Will is appropriate. A full court application is required involving anyone affected by the application be it current beneficiaries named in the client’s Will or those affected on intestacy.
• The application is very detailed and needs a comprehensive application considering the client’s wishes and feelings and input from people in the client’s life including family, case managers, OT, therapists and care workers if their relevant.
• We also consider whether clients want to put in place a Health & Care Lasting Power of Attorney appointing family members to act as attorneys.
• Don’t overlook the wider family members – do their Wills need updating in light of the client’s change of circumstances? Do the family members want to put Lasting Powers of Attorney for Financial decisions or Health & Care decisions.

Conclusion

Working collaboratively within Shoosmiths and with external experts is key for our clients, only with collaboration and clear communication can we support clients through the litigation and deputyship processes.

We hope out seminar has given an insight in to our processes and has given some signposting and areas for further consideration for our delegates.