Deputyship in personal injury award casesProperty and affairs applicationPersonal injury award cases:deputyship inDeputyship applications:personal injury award casesDeputyship applicationsApplications:property and affairs casesProperty and affairs applicationPersonal injury award cases:deputyship inDeputyship applications:personal injury award cases:interim paymentsDeputyship applications:personal injury award casesDeputyship applicationsApplications:property and affairs casesProperty and affairs applicationPersonal injury award cases:deputyship inDeputyship applications:personal injury award casesDeputyship applicationsApplications:property and affairs casesProperty and affairs applicationPersonal injury award cases:deputyship inDeputyship applications:personal injury award casesDeputyship applicationsApplications:property and affairs casesProperty and affairs applicationPersonal injury award cases:deputyship inDeputyship applications:personal injury award casesDeputyship applicationsApplications:property and affairs casesProperty and affairs applicationPersonal injury award cases:deputyship inDeputyship applications:personal injury award cases:budgetDeputyship applications:personal injury award casesDeputyship applicationsApplications:property and affairs casesProperty and affairs applicationPersonal injury award cases:deputyship inLasting powers of attorney:validityDeputyship applications:personal injury award cases:budgetDeputyship applications:personal injury award casesDeputyship applicationsApplications:property and affairs casesProperty and affairs applicationPersonal injury award cases:deputyship inDeputyship applications:personal injury award cases:budgetDeputyship applications:personal injury award casesDeputyship applicationsApplications:property and affairs casesProperty and affairs applicationPersonal injury award cases:deputyship inDeputyship applications:personal injury award cases:budgetDeputyship applications:personal injury award casesDeputyship applicationsApplications:property and affairs casesProperty and affairs applicationPersonal injury award cases:deputyship inDeputyship applications:personal injury award cases:budgetDeputyship applications:personal injury award casesDeputyship applicationsApplications:property and affairs casesProperty and affairs applicationPersonal injury award cases:deputyship inDeputyship applications:personal injury award cases:budgetDeputyship applications:personal injury award casesDeputyship applicationsApplications:property and affairs casesProperty and affairs applicationPersonal injury award cases:deputyship inDeputyship applications:personal injury award cases:budgetDeputyship applications:personal injury award casesDeputyship applicationsApplications:property and affairs casesProperty and affairs applicationPersonal injury award cases:deputyship inDeputyship applications:personal injury award casesDeputyship applicationsApplications:property and affairs casesProperty and affairs applicationPersonal injury award cases:deputyship inDeputyship applications:personal injury award casesDeputyship applicationsApplications:property and affairs cases
7.70Many of the highest value deputyships arise from claims for personal injury where P has sustained a brain injury. As mentioned above, in these cases the court will usually prefer a professional deputy. They raise specific considerations which merit brief highlighting here.
An applicant in this type of case should also be aware of the recent decision in
Watt v ABC1[2016] EWCOP 2532. which considered the question of when damages should be managed by a deputy and when the creation of a personal injury trust would be appropriate. Charles J commented that when a decision is made as to the best vehicle for future management of P’s funds, those making this decision should not proceed on the basis that there is a strong presumption that the COP would appoint a deputy and would not make an order that a trust be created of the award.
7.71The deputy will usually become involved at a stage of the litigation where there has been an interim payment, or liability has been settled and an interim payment is anticipated. More rarely, a deputy is needed well before liability is established – for example, where P had an insurance policy that has paid out to a sole name account and their family need to access it to meet day-to-day bills.
7.72If a referral is made before liability is established or any funds are available, the deputy must act cautiously; there is the possibility that the claim will fail and they should bear in mind how the court and other fees are to be funded. It may be necessary to advise the family of P on other options, eg appointeeship, to claim benefits, local authority funding etc.
7.73Once liability has been settled and an interim payment is made, the deputy should take steps to ensure that they know the terms of the payments made and the professional recommendations for P’s care and case management. In cases of this sort, interim payments will be made for a particular purpose and a failure to manage funds in line with these purposes can have an adverse impact on the overall value of P’s claim. The deputy needs to ensure that they have regular communication with the litigation team. The deputy should consider asking for certain litigation documents such as a copy of any order relating to interim payments as these are useful to have on the file to refer back to in the future.
7.74Reports obtained in the course of litigation can also include valuable guidance as to how it is recommended that P’s funds be applied, as well as how best to communicate with P to maximise their understanding and participate in decision-making. Professionals engaged to provide services to P such as case mangers, physiotherapists, occupational therapists and neuropsychologists will all provide costs estimates for their intervention. All this information can then be used by the deputy to formulate a proposed budget for the management of P’s funds.
7.75When establishing a budget, the deputy will typically communicate with family members or care-providers depending upon P’s circumstances. Sadly it is often the case that a family will be under a huge amount of financial pressure if they have managed for some years without P’s financial contribution or they have been frequently travelling to a distant hospital to visit P. The deputy may be able to consider alleviating some of this pressure by reimbursing some of these past losses. The legal team involved in running the personal injury claim will be able to guide on this point, and in some cases the order obtained in the personal injury claim approving the interim payment will make specific allowance for a sum to be paid to the family for these costs.
7.76Clarity is important at this stage, first because whoever is paying sums out needs to be clear about the authority to make those payments; and second, because litigation can take many years to settle, it is important to make sure that everyone understands and records accurately what each payment is for.
7.77In many personal injury cases insufficient funds are made available at the interim payment stage to implement all of the recommendations made to the claimant’s litigation team. In an appropriate case, the deputy should consider exploring other funding avenues such as local authority funding in the form of direct payments.
7.78The deputy is responsible for scrutinising the quality of the services they pay for on behalf of P. If a service or treatment provider is falling below an acceptable standard, or not providing what has been recommended for P, then there may be the risk that the cost of the service or treatment is disallowed when the damages are assessed.
2Loughlin v Singh and others [2013] EWHC 1641 (QB), [2013] COPLR 371.7.79Occasionally the deputy may feel that they are being asked to perform a role outside that of simply managing P’s property and affairs. If the deputy is being asked to make a decision that goes beyond the financial and budgetary, this is beyond the scope of the deputy’s authority. For example, if P wants to go on holiday, the deputy would be expected to set a suitable budget and make sure that the costings include all the expected items; but it is not the deputy’s role to decide if it is in P’s best interests to go on that particular holiday at that particular time.
7.80The case of
Re SRK has placed the additional responsibility on a professional deputy, in cases where P benefits from a private care regime at home, to make contact with the local authority if they are of the view that P’s care regime could amount to an objective deprivation of liberty to which P cannot consent.
3[2016] EWCOP 27, [2016] 3 WLR 867. See further in this regard chapter 21. This case concluded that where there is a court appointed deputy this is sufficient state involvement to engage the state’s obligations to secure the person against arbitrary deprivation of their liberty. A professional deputy in this position would be well advised to familiarise herself with the case. This case is subject to an appeal at the time of writing and professional deputies will therefore need to ensure they remain alive to developments in relation to their duties.
7.81Depending upon the level of funds available and the expected expenditure where there is ongoing litigation, the deputy will usually want to consider putting in place regular budget updates. This allows the deputy to see if funds are being spent in accordance with recommendations and if budgets are being kept to. P’s circumstances, and the recommendations for their care, can change rapidly; the deputy should keep pace with these changes.
7.82Once a claim for compensation is settled the deputy will need to review the financial position P has been left in and begin to make plans for the longer term. Many cases settle for a lump sum plus periodical payments to meet P’s care needs. The deputy will typically want to focus on investing the lump sum in such a way that P’s needs are met now and in the future.
7.83Other matters that the deputy should consider once any litigation has been finalised will include reviewing P’s testamentary provision.