The European Court has upheld the long-standing principle that parties to a dispute should be able to choose their lawyers without having to go through a tender process (or use a framework).
One significant difference between someone managing the financial affairs of another (often called “P”) under a power of attorney as opposed to a deputyship, is the degree of supervision. The Public Guardian provides the supervision.
With a power of attorney, the oversight is retrospective in that his office (the Office of the Public Guardian or OPG) will only become involved if concerns are reported to them. A deputy, on the other hand, not only has to submit annual returns evidencing all income and expenditure transactions, but also advises on the capital assets and other details. Additionally, the Public Guardian can arrange for a court visitor to meet the deputy and P to provide a report on how things are progressing. As an extra safeguarding level, the deputy takes out insurance in almost all cases. The OPG has approved certain insurance providers for this purpose.
The intention is that, if the deputy defaults – especially regarding misappropriation of funds – the insurance bond can be called in to pay out a sum that is broadly equivalent to one year’s outgoings. In the last few years, a few reported cases have considered some of the practical issues involved.
In Re H the judge noted that:
“the premium buys a promise…to pay up to the stated value of the bond upon a demand made…In the case of a bond under this scheme, the promise is to pay the amount of any loss identified by the Public Guardian and certified by the court, up to the amount of the bond” (para 37). The judge also added that “the scheme provides for payment of forfeited bonds within two weeks” (para 38).
In Re Gladys Meek the judge observed (at para 38) that:
“Effectively, the bond scheme offers an alternative to a deputy bringing an action against a previous defaulting deputy to recover lost or stolen funds. It provides an immediate, and straightforward, mechanism by which the court can ensure that an incapacitous person is compensated for losses that have been incurred through the default of the deputy. It avoids the delay and expense which the incapacitous person would otherwise face in bringing proceedings against a defaulting deputy, who may be of questionable solvency…The defaulting deputy does not get off scot-free but he is instead likely to face proceedings brought by the bond provider.”
In Re M HHJ Purle determined that it was not appropriate for a local authority to require the bond to be called in where the deputy had refused to make certain payments to the local authority. There had been no prior determination of loss caused to P by the deputy, such that there was no basis for calling in the security bond. The determination of third-party claims is outside the jurisdiction of the Court of Protection.
In the case of The London Borough of Enfield v Matrix Deputies & Anor Ltd, Senior Judge Hilder set out, at paragraph 20, the approach the Court should adopt to the calling in of a bond as follows:
“a. The person bringing the application (usually the new deputy but potentially the Public Guardian or the personal representative of P’s estate after P’s death) should be required to provide a report identifying the alleged loss, with documentary evidence in support exhibited as appropriate. That report must be served on the deputy alleged to have caused the loss (but need not be served on the bond provider);
b. The allegedly defaulting deputy should have opportunity to consider that report and to file a written response;
c. The court will make a summary determination, with or without oral submissions as the court sees fit. The burden of establishing loss is on the person bringing the application, on a balance of probabilities. The determination will ‘summary’, not in the sense of ‘summary judgment’ but rather in the sense of ‘summary assessment’ of costs and as opposed to a full forensic examination;
d. The summary assessment must quantify the loss sufficiently for all parties and the bond provider to be clear about how much money is to be paid under the bond. If the loss is less than the full amount of the bond, then quantification should be in the form of a specific amount (“£x”) or by reference to an ascertainable amount (e.g. “the new deputy’s costs of the investigation and call-in proceedings as assessed by the SCCO).”) If the assessment is that the loss exceeds the full amount of the bond, it will be sufficient to state that and provide for the bond to be called in for its full amount.”
Adding that “an order to call in the bond does not amount to a final determination of civil liability on the part of the defaulting deputy. The process for such determination is the bond provider’s claim for recovery in the civil courts.” (para 22).
Whilst it is hoped that defaulting deputies are the exception, it is helpful to have the process clarified for making a claim on the bond and to be reassured that it is relatively straightforward and quick. Given the number of situations where attorneys also abuse their position, maybe they too should be required to take out bonds.
For further information or advice about the issues raised in this briefing, please contact Alex Elphinston.
1. HHJ Marshall QC in Re H 1 WLR 1103
2. HHJ Hodge QC in Re Gladys Meek  EWCOP1
3. Re M  EWCOP 24
4. HHJ Hilder in London Borough of Enfield v Matrix Deputies Ltd & Anor  EWCOP 22
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