How do I deal with my costs following the death of P?
by Ellie Howard-TaylorPosted on February 15, 2022 February 15, 2022
Costs following the death of the Protected Party are often a grey area in Court of Protection matters.
In some cases, the Deputy may wish to subject their costs to detailed assessment, however, in most incidents the Protected Party's estate will be in probate and the Deputy's costs will be agreed with the Executors of the estate.
What happens following the death of P?
Following the death of the Protected Party, the Deputy's authority under the First General Order seizes with immediate effect. Once the matter has been transferred to the Executors of the Protected Party's Estate, the Deputy can agree their costs directly without the need for a detailed assessment, saving the Protected Party further expense. It may be necessary to negotiate a discount with the Executors which would take into account any likely reductions that you might expect from the SCCO.
If the costs cannot be agreed with the Executors, the Deputy will need to contact the Court for authority for assessment. Ordinarily, the SCCO will give permission by email to enable the assessment in these circumstances, otherwise it may be necessary to apply to the COP for further authority. After the assessment, the allowed amount should be paid by the Executor.
Can I be remunerated for work done after the death of P?
Rule 165 under Part 19 (Costs) to the Court of Protection Rules 2007 states that the Deputy's costs can be remunerated where "an order or direction that costs incurred during the Protected Party's lifetime be paid out of or charged on his estate may be made within 6 years after the Protected Party's death." If there is no Order as to costs then the Deputy cannot be remunerated through detailed assessment.
Can I recover all costs incurred following the death of P?
The SCCO may allow 'reasonable costs', post death of the Protected Party, in order for the Deputy to finalise their involvement in the matter. The SCCO have indicated that such costs should not be expected to exceed £1,500.00 + VAT.
We would recommend separating your costs into pre and post death of the Protected Party to distinguish the time spent both before and after the death. This may assist the recovery of costs on assessment as the Costs Officer can clearly see the time spent post death.
Do I have to go to a detailed assessment?
If the Executors do not contest the Deputy's costs, the Deputy will be invited to raise a final invoice which will then be settled from the Protected Party's funds once the Grant of Probate has been drawn. Where the Deputy's costs are disputed, the Executors can elect for the Deputy's costs to be subject to detailed assessment, as explained above.
In either of the above situations, the Deputy's authority to administrate the Protected Party's affairs will be discharged on the Protected Party's death unless an Order is made to extend the Deputy's powers.
If you have any questions relating to post death costs, please get in touch with myself at ellie.howard-taylor@clarionsolicitors.comor on 0113 288 5660.
Posted in Court of ProtectionTagged Clarion Costs Team, COP Costs, Court of Protection, Legal Costs
Published by Ellie Howard-Taylor
View all posts by Ellie Howard-Taylor
Prev For COP practitioners, please see update released from the SCCO today in relation to their backlog!
Next Consultation open on fixed recoverable costs in clinical negligence claims