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Written on 26th February 2021 by Alexander Wright

Happy birthday indeed. Sorry I didn’t get you a present.

I recently posted a summary of 2020. Pandemic and all, ACC had more of an impact on deputyships than anything else, in my view.

The case sets restrictions on the powers of a deputy - solicitor and family deputies alike.

What is ACC?

It can be called different things. ACC. ACC & Ors [Others]. Re ACC. I’ll call it ACC. But it’s a statement by a judge setting out guidance for what a deputy can and can’t do.

A quick recap of some important aspects for all deputies – family deputies and solicitor deputies:

  1. Care Funding: Deputies cannot challenge state funding decisions for care, like NHS continuing healthcare funding (Para 54.8). This applies to family deputies, not just solicitor deputies.
  2. Education: Deputies cannot access advice for EHCPs for the children they look after (Para 54.8). This applies to family deputies, not just solicitor deputies
  3. Litigation: Deputies cannot advance or defend litigation against the people they look after (Para 51.3). This applies to family deputies, not just solicitor deputies.
  4. Third party legal fees: Deputies cannot pay legal fees for others to seek advice to help a vulnerable person (Para 57.5). This applies to family deputies, not just solicitor deputies.
  5. Welfare: Deputies can’t get involved in welfare issues (Para 52.5) or seek advice on welfare issues (Para 54.6). This applies to family deputies but only in your capacity as deputy. Also applies to solicitor deputies.
  6. Conflict of interest: Solicitor deputies cannot ask their colleagues to help without spending time asking two other law firms to quote for the same task, no matter how small the piece of advice (Para 56.7). This only applies to professional (usually solicitor) deputies.

Deputies need to make a court application if they want to do any of the above.

If you are a deputy and have done any of this already, no matter the result, you need to apply to the court for retrospective approval.

Everything that applies to family deputies applies to professional deputies too.

Here are a few FAQs:

I’ve been told by the OPG I have to get approval for what I’ve done.

This might seem daunting but we have done a lot of these applications and can offer free advice.

I’ll wait for the dust to settle

Don’t do that. The court might order you pay the money back from your own pocket.

How far back do I go?

At least the last year or so. Call us to talk about it.

What clarifications have we had from the Court of Protection since the judgment a year ago?

None yet.

What has the Office of the Public Guardian done to help deputies?

The OPG uploaded guidance to its website on 22 January 2021, close to a year after the judgement dated 27 February 2020. The guidance said that by 1 April 2021 (10 weeks’ notice) the Public Guardian expects all deputies to have applied to the court for retrospective authorities. A link to the guidance can be found here.

The Public Guardian hasn’t released advice aimed at family deputies yet. We can help you through this though.

I’m an attorney. What does this mean for me?

Attorneys seem to have been missed in this case. Contact our private client team for advice.

I’m a family deputy so surely the court doesn’t expect me to make an application?

If you have paid for advice on EHCPs from the funds you manage as deputy, e.g. for your child, or for challenging a care funding, for example, then yes, you probably do. It’s very unfortunate but no allowance seems to have been made for family deputies. If you want to check, call us.

I might have acted outside my authority technically but I secured a huge financial benefit for my family member.

Sorry, the Office of the Public Guardian hasn’t provided any reassurances here. They might say you need to go back to court.

I’m a family deputy and have a welfare issue I need help with.

This is a bit of a tight rope but we can help you navigate it. Just call us - 0118 952 7219

My solicitor said I don’t need authority to instruct them.

Not all solicitors know about the outcome of ACC, so ask for that in writing.

Do I have to read further?

No. Call if you need some help.