What happens to your costs when P dies?
This article is for the interest of a Professional Deputy and any supporting Solicitors, Legal Executives and Paralgels who manage the day-to-day property and financial affairs of P (Protected Party)
What happens to the Deputy’s costs?
The Deputy needs to refer to an Executor to see if the costs can be agreed or the Deputy can ask for their costs to be subject to a detailed assessment. What we find generally with our clients at A&M Bacon is the Deputy’s costs will usually be agreed with Executors of the estate once the matter has been transferred over. Given the backlogs with court this is the most practical option. This also saves the time and expense of making a further application, which is required to obtain “final directions”, which would include a direction for all outstanding general management costs to be assessed, in the event and agreement cannot be reached.
However, where a Professional Deputy is also the executor for P’s estate, there is a potential conflict of interest, and the bill should be submitted to the SCCO for assessment. In such circumstances, the SCCO will need permission from the COP to carry out a final assessment. (SD9 Professional deputy costs (07.16).
The guidance does advise that a formal application can be avoided and practitioners should simply able to write to the Court of Protection seeking authority for the remaining costs to be assessed. However, we are aware the court does not always accept such requests and sometimes insists upon a full application being made for final directions. Our advice here is to write to the COP first, to see if authority can be obtained without recourse to a full application.
If costs cannot be agreed with independent Executors, the Court will need to be notified and authority will be needed to have the costs assessed. The SCCO should give permission by an email notification. However, in some cases it may be necessary to apply to the COP for authority to have costs assessed.
If there is no Executor of P’s estate, steps need to be taken to obtain a Grant of Probate. Please note, if you instruct an in-house probate solicitor who are appointed as executors/personal representatives, the Deputy should be able to write to the COP to request authority for their remaining costs to be assessed, as detailed above.
If External Executors are appointed, the Deputy can agree those costs with them. An application for final directions will only be required if agreement cannot be reached and the time and fees for which can be added to the final bill of costs. It is worthwhile remembering that if an agreement can be reached, this will avoid i) further application costs (and delay), ii) costs draftsman’s fees and iii) the court assessment fee, currently £87.00.
What happens if a bill has been prepared and has been submitted to the court?
The SCCO has no authority to assess a Professional Deputy’s bill or continue with an assessment that has partially progressed without further authority from the COP. Therefore, the bill of costs would need to be agreed with the Executor or the Deputy would need to seek authority to have the costs assessed, as detailed above.
Who is to be informed?
As well as informing the Executor, the Deputy should also inform the OPG and COP and provide them with a copy of the death certificate.
Can costs incurred post P’s death be recovered?
The SCCO may allow costs of the Deputy to finalise their involvement and conclude matters. It has been recommended by the SCCO that any costs incurred post the death need to be recorded separately as there is presently no power in the COP Rules to order their payment. These costs may not be insubstantial. However, by separating the hand over work undertaken, post-death, the costs officer will be able to clearly see what work has been incurred and consider the reasonableness of such.
At A&M Bacon we would recommend where possible to try and agree matters with the Executor as this will save time and further costs. However, sometimes this not straightforward as there can be disagreements with the Executor and it may be a case to then elect for a detailed assessment. We have a dedicated and experienced team that are happy to advise and support you through this.
Should you have any queries arising as a result of this article, please do not hesitate to contact us.
Brian Ferry, Court of Protection Cost Lawyer
13/09/2023