Are professional Deputies worth it?
This has been hitting the headlines and law reports again recently.
In the case of JR v Sheffield Teaching Hospitals NHS Foundation Trust, the Court was looking at what damages a 24 year old with severe cerebral palsy ought to receive. One of those areas was the cost of a professional Deputy.
The family were helpful and supportive but did not have a lot of financial experience. JR, although he lacked capacity to manage his own affairs, certainly had the capacity to have input and the Deputy would need to consult him about decisions as well as working with the family.
The claimant claimed annual management costs starting with £30,605 plus two visits for the first year, down to £11,232 plus one visit for year five and onwards. The defendant’s view of costs was very different; £14,000 for the first year inclusive of two visits, down to £7,000 for year five onwards including one visit. The Court much preferred the claimant’s view of what the Deputy would have to do as well as the way it was set out and awarded sums extremely close to those claimed by the claimant plus an extra contingency fund of £38,160 for matters such as Wills, cohabitation or pre-nuptial agreements and crises.
At the other end of the spectrum, do you remember Cathy Svendsen? Her daughter, Samantha, received medical negligence compensation of £2.6m. Cathy was appointed as Deputy rather then a professional, but unfortunately she was not one of the many selfless caring family members who do their best for their child. Instead, it was reported that she and her ex-husband bought holidays, houses (including a villa), a pink Mini Cooper and breast enlargements.
You would think after all that Svendsen might have had enough of the limelight. However, her daughter has now died and, not surprisingly, her Will provided that her estate (now worth a rather reduced £160,000) did not go to Cathy, who has hit the headlines again by indicating that she will challenge the Will.
These days, the Court of Protection would generally not consider family members appropriate where substantial damages for personal injury have been awarded. In the matter of PNB between RS and DG and JG [2014] EWCOP 42:
If a person needs a Deputy as a result of the injury they have suffered, the costs of appointing that Deputy and the work that Deputy will do over the person’s life can be claimed as an item of special damages.
3 Tips for litigators to get the best value out of professional Deputies:
There are a few things that a Deputy can do to assist the litigation process.
- The first is to get a Deputy in place as soon as liability is admitted. It is much easier to tell what the likely costs of Deputyship are if a Deputy has been in place and has been working with the client and their family. If everything has been left to the litigator it can be extremely difficult to tell accurately how much Deputyship input is likely to be needed going forward.
- It is also important to keep on top of your costs assessment. Costs that have been assessed by the Senior Court Costs Office are much more persuasive than just having WIP on the clock. As part of the claim it is likely that you will be asked to do a statement setting out what the likely costs of Deputyship are. As Deputyship costings excite some litigators rather less than care and case management costs, you might find that you are further down the pecking order and do not get a lot of notice. Having all the costs up to date and assessed before you do this will therefore make your life a lot easier.
- Remember that not all cases are the same and as well as the client’s condition, which is obviously incredibly important, the family dynamics can have a very significant effect indeed on the likely costs of Deputyship. Two people with very similar situations but very different families can need very different levels of involvement.
Further reading
Case reports
JR v Sheffield Teaching Hospitals NHS Foundation Trust [2017] EWHC 1245 (QB) (25 May 2017)
PMB, Re [2014] EWCOP 42 (06 November 2014)
