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Written on 19th June 2020 by Alexander Wright

Alexander Wright, senior associate - solicitor and Professional Deputy, summarises the recent changes to the authority of family deputies when seeking legal advice.

A lot of deputies are family members rather than professional deputies. Most hopefully know that they can’t pay themselves without specific court authority. But a new case has confirmed that even when you’re not paying yourself and are actively taking proper advice to help someone, you might be heading for trouble.

The recent case, ACC & Others, has dramatically changed the landscape for family and professional deputies alike. For professional deputies there are additional issues to consider, but this article covers family deputies only.

What does the case say? In short, some legal advice you can take, like advice from our Court of Protection specialists, but some advice you can’t take, or can only take so far, without specific court approval. The judgment warns deputies that there are financial risks if they get this wrong.

The judge singles out Special Educational Needs advice as something a deputy needs to seek Court approval for. So, if you’re a deputy for a child and they are about to transition or you want to challenge the support they receive or their placement, you now need to apply to the Court of Protection for authority to pay for solicitor fees - something you might need to do quickly if you have a review coming up. This is the case for any advice in relation to Education, Health and Care Plans (EHCPs).

Other legal fees including pursuing or defending a claim or other litigation, like evicting a tenant, you can only take so far - just beyond sending a formal letter demanding compensation or responding to such a letter. In practice, you might need to make an application to the Court before you reach this point.

Similarly, our Court of Protection team specialises in securing care funding, either from the NHS or your Local Authority. The Court will need to approve the costs of this work if you reach the point where you need to appeal the authority’s funding decision, which is very common. Of course, we can help with that Court application too, to help you maximise the chances of a good result for the person you are deputy for.

These new applications are straightforward and relatively low cost if prepared by specialists in this new case. Ultimately you need to be confident that it’s worth doing and we can give you the advice you need to reach that decision.

The key point to remember is that if you are a deputy and you are in need of legal advice, check with a Court of Protection specialist before you incur any other legal costs.

Contact our Court of Protection specialists here for an initial consultation.