Court of Protections

Dear All

We have a client who is completely paralyzed and cannot talk, write, move and is currenty the claimant in a personal injury claim.

Will we need to go court of protection for someone to be appointed to represent her or can her immediate family do this without court of protection?

Regards Awais

Your client will need a Court of Protection appointed deputy otherwise she will have no one with legal authority to manage her finances.

Although a family member may apply to be deputy, if the personal injury claim is successful and there is a significant compensation payout, I would recommend a professional deputy. It can be time-consuming and stressful dealing with the Court of Protection and the Office of the Public Guardian and a family member who is also trying to cope with the emotions and practicalities arising from looking after their disabled relative may find it all too much.

If the personal injury claim is unsuccessful, and the client’s assets are small, a family member may be preferable so that a significant amount of the client’s benefits are not spent on the deputy’s fees.

From the professional deputy’s point of view, if the client’s assets are very small, the deputy can end up doing a significant amount of work for which they will not be adequately remunerated. In a small firm, there is a limit to how much pro bono work can be supported.

Agree with the answer above as regards management of the persons finances/compensation.

As regards the conduct of the litigation you can apply to the court in which the claim proceeds to appoint a litigation friend, or the proposed LF can apply.

Probably also worth making the deputyship application for managing finances sooner rather than later if the claim is large.

You might like to consider the basis on which you issued a claim form if you client was unable to provide instructions? The procedure to be followed, generally, is set out in CPR 21, and in particular CPR 21.5. it involves among other things filing a certificate of suitability of the litigation friend (who must have no contrary interest) at the time of issue, and the litigation friend’s accepting liability for costs. Until this is done the issuing solicitor is at risk of being held personally liable for costs on the basis that he has acted without instructions. None of this however avoids the essential question, how was the injured party able to provide instructions in the absence of Court of Protection authority?

Clifford Payton, Alpha Court Chambers

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