Good practice guidance has been published by the office of the Public Guardian (OPG) and the Senior Courts Costs Office (SCCO) to assist professional Deputies when submitting estimates of costs and bills for assessment. The guidance explains what should be claimed for in general management (GM) bills as well.
This should be read in conjunction with the relevant Civil Procedure rules (CPR), COP Practice Direction PD19B, section 23 of the SCCO Guide (October 2013), the Mental Capacity Act 2005 Code of Practice (the Code) and OPG professional Deputy standards.
The OPG introduced the changes to further safeguard the client’s/patient’s interests, and to monitor the fees charged by professional Deputies more closely. It has also helped to gain an insight into the Deputy’s management of the financial affairs for their clients in the future.
Deputies need to provide an estimate of costs (OPG105) for the following year. This should be submitted with the end of year report sent to the OPG.
It is expected that the report should take around 30 minutes to complete and so should not add any further costs burden to the client.
Bills will continue to be assessed by the SCCO. The SCCO will need as much information as possible when making an assessment of the bills. The costs estimates submitted to the OPG should also be provided. Whilst the estimates are not binding, if they have been exceeded by 20% or more, it will be necessary to provide an explanation for the difference.
What is “Good Practice”?
A professional Deputy is entitled to GM costs which are:
1. Reasonable; and
2. Proportionate to the total value of the client’s estate, for example work should be done by an appropriate fee earner, not acting exclusively where the client’s assets are being depleted.
Professional Deputies are expected to demonstrate a higher degree of care or skill when carrying out their duties. Where the GM costs are estimated to be the same for the following years they may also have to consider whether the client actually requires the services of a professional Deputy or if it would be in the client’s best interests to appoint a family member or a friend instead.
Both OPG and SCCO are very clear that any professional Deputy who does not follow the published guidance will have to explain the reason for their actions and more significantly demonstrate how their actions are in the client’s best interest. A Deputy could be relieved of his/her duties if the above is not met.
What should be claimed in a GM bill?
The following is an overview of the approach taken by the SCCO when they are assessing GM bills and is something that all Deputies should consider prior to submitting their bills:
Hourly Rates - Unless the circumstances are exceptional, only Guideline Rates will be awarded.
Delegation of Duties - Deputies are expected to delegate work to the appropriate fee earner, for example paying bills or checking bank statements should be carried out by a Grade D fee earner.
Paying Bills - Three-minute units will be allowed in respect of paying bills by electronic transfer, cheque or enclosure letter.
Level of Contact - One home visit by one fee earner will be normally allowed in a 12 month period. Anything more needs to be justified.
Welfare Work - The cost of appointing a property and affairs Deputy for welfare work is not recoverable from the client’s estate unless permission is obtained from the COP.
Investment Meetings - Usually one senior fee earner will be allowed to attend such meeting to discuss the best investment strategy in cases where large damages are awarded.
Estimated Costs - These will be not allowed unless there is documentary evidence provided in support of the bill.
Overheads - Research, considering incoming routine correspondence, internal communication and supervision will be disallowed except in exceptional circumstances.
Routine Correspondence Sent - A three-minute unit will be allowed for straightforward communications.
Litigation Costs - Costs will be disallowed which could be properly be claimed within the context of ongoing litigation.
Cost Draftsman’s Fees - Grade D rates will be allowed for drafting the bill unless there are exceptional circumstances.
The short form bill must be used for costs claimed of under £3,000 (excluding VAT and disbursements).
Submitting bills to SCCO - It is good practice to submit the GM bill of costs annually and as close to the end of the annual management year as possible. Professional Deputies will need to explain if this can’t be done.
By Nadia Zarait - Associate and Costs Lawyer