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New guidance from the Court of Protection on appointing the
Official Solicitor in both personal welfare and property, and
affairs proceedings.
Here we provide an example to illustrate the guidance issued in
relation to property and affairs proceedings.
John, Sanita and Anna.
John had an accident a couple of years ago and suffered a brain
injury, because of this accident, John no longer has mental
capacity to manage his property and financial affairs.
Sanita, John’s Wife, was appointed as deputy last year and
wishes to gift their adult Daughter Anna, John’s rental
property as John no longer needs the income.
Sanita makes an application to the Court of Protection in order
to make this gift and is informed that the Court will need to
invite the Official Solicitor (“OS”) to act as
John’s litigation friend.
Below we explore the details surrounding this.
Why?
The Court has the duty to consider whether or not John can
participate in the proceedings and to decide whether he should be a
party to them. Here, because John lacks the capacity to conduct the
proceedings alone, a litigation friend must be appointed. In
property and affairs proceedings, this is usually the OS
1.
How?
The OS will be invited to act as the litigation friend for John
by order of the court. This order will be subject to the
consent of the OS
2.
Will the OS consent to acting as John’s litigation
friend?
Before the OS can consent to acting as John’s litigation
friend, the following criteria must be met
1. First, there must be evidence or reason to believe that John
lacks capacity to conduct the legal proceedings alone.
Here this would be evidenced by an assessment on John’s
capacity, most likely by a medical professional.
2. The OS must be satisfied that John’s costs in the
proceedings can be met as and when they fall due. This is usually
fulfilled by the OS determining:
- Evidence of liquid funds owned by John. These must be, in the
view of the OS, adequate in all the circumstances; - A professional undertaking in a satisfactory form and of
adequate value; or - The receipt of an adequate sum of money on account from Sanita
as the applicant (or another appropriate party, such as one of
Sanita’s family members).
If at any time, the OS is no longer satisfied that costs can be
met, they will apply to be discharged from the role.
3. The OS should not accept an invitation where it is considered
that the costs are likely to become disproportionate and/or it
would not be in John’s best interests to incur the costs
involved.
The OS has accepted the invitation to act as John’s
litigation friend, what happens now?
On appointment, the court will usually direct Sanita, as the
applicant, to serve the OS with a copy of the relevant papers
without delay. These will include the application paperwork and any
supporting information.
The service must comply with the relevant practice direction of
the court, should be electronic where possible and should attach
exhibits as separate PDFs appropriately labelled. Sanita will
probably want to seek legal advice to ensure that this is done
correctly.
Once the documents have been properly served, the matter will be
allocated, and Sanita will be given the OS’ contact
details.
Sanita wants to make the gift before Anna gives birth to her
new baby so that she can use the rental money to help her
financially, can the case be marked as urgent? How?
Yes. Sanita should inform the OS of the urgency.
What about expediting the case?
To do this, Sanita should inform the OS of her request. However,
doing this may mean that the OS cannot undertake all of the
enquiries and investigations they would usually, had John’s
case not been expedited. For this reason, a direction from the
court is normally required for the OS to expedite a case.
John’s case has now come to an end, what does Sanita do
about the costs?
Unless the final order stipulates otherwise, the OS will usually
seek costs from Sanita as the person with authority to deal with
John’s finances. These costs will first be assessed by the
Senior Courts Costs Office. This can be a long process.
What if John dies before the costs are settled?
Sanita should contact the OS’ finance team as soon as
possible. She should provide contact information for John’s
personal representatives or their instructed solicitor where
applicable. It is important that those administering John’s
estate hold back enough money to settle the OS’ costs.
What other decisions would the OS get involved in?
The OS will be frequently invited to act as litigation friend
for a person lacking capacity in proceedings concerning many
decisions including the following:
– the execution of a statutory will/codicil, making large
gifts on behalf of P, including transactions at an undervalue (or
ratification of an unauthorised gift that has already been made),
the execution of a settlement of assets belonging to P, gratuitous
care payments and transactions or investments where one of the
parties faces a conflict of interest, such as a purchase by or from
the attorney/deputy or a proposed purchase of investments on behalf
of P aimed at Inheritance Tax efficiency.
The OS is sometimes invited to act as ‘Advocate to the
Court’ in circumstances where a significant and/or
complicated point of law might be decided without the court hearing
a relevant argument. The Advocate to the Court gives advice on the
relevant law and its application to the facts of the case. They do
not represent any party. Funding and budgets will play a large part
in deciding whether or not the OS will accept this invitation as
the costs are put forward by the OS’ small internal budget.
Where a third-party offers to fund such, the OS will usually
accept.
Footnotes
1. Rule 17.4(1) CoPR 2017
2. Rule 17.4(2)(b) CoPR 2017
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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