By Emily Ham, Trainee CILEX Lawyer (MCILEX), Experienced Court of Protection Paralegal, Davies and Partners Solicitors

This note briefly summarises practical options for proposed professional deputies and litigation solicitors where an interim award (for example, from a personal injury or clinical negligence claim) is available but you are still waiting for the Court of Protection (CoP) order appointing a property and affairs deputy.

Until the deputyship order is sealed, a proposed deputy will usually have no authority to receive, hold, or spend P’s funds. Where interim awards may need to be managed before the CoP has had time to consider the appointment of a deputy (which can be a lengthy delay), this can often create difficulties in managing the litigation funds during that waiting period.

Option 1 – Urgent/interim CoP order to receive and manage the interim payment

If a deputyship application has not yet been issued, consider issuing it urgently and explaining the urgency within the application. If a deputyship application has already been issued, file an urgent application notice (COP9) supported by evidence seeking an urgent appointment and/or in the alternative an interim order for a specific one-off decision for authority to receive the interim payment into an identified account and to meet urgent liabilities and expenses.

Advantages

• Creates a clear legal authority to act even before the full deputyship order is made.
• An urgent interim order can be tailored narrowly to the interim payment and specific urgent expenditure.
• Reduces risk of criticism for acting without authority.

Disadvantages / risks

• Requires careful evidence of urgency
• Even where urgent, there can still be delays with the CoP in considering urgent applications. The funds may be locked away in the Court Funds Office whilst this is awaited.

Option 2 – for the Kings Bench Division to include wording in the interim award order enabling the funds to be managed by the proposed deputy ‘as if they were deputy’ pending the deputy’s appointment.

This can sometimes be proposed in the personal injury/clinical negligence proceedings to try to bridge the gap before the CoP order is sealed.

Advantages

• May help obtain release of funds quickly where all parties agree a practical holding arrangement pending CoP involvement.
• Means that funds can be used immediately in P’s best interests.

Disadvantages / risks

• Risk of acting without proper authority under the Mental Capacity Act 2005 and this will not entitle the proposed deputy to recover costs for pre-appointment work – a COP9 may be required to request retrospective approval for pre-appointment costs to be authorised for work done from the date of the interim award order.
• Will not enable the proposed deputy to enter contracts or access P’s accounts.

Option 3 – For a Deed of Trust to be approved by the Kings Bench Division authorising trustees to manage the interim award pending the appointment of a deputy.

A short-term trust arrangement can sometimes be used to receive and manage an interim payment where

there is no deputy in place yet. This creates a fiduciary duty to hold and apply the payment for P’s benefit, with clear provisions about how the trust will end once a deputyship order is made.

Advantages

• Provides a clearly defined holding structure for the interim funds with agreed trustees
• Can be drafted to allow payment of specific, evidenced needs (care, therapies, equipment, accommodation adaptations) pending deputyship.
• Can protect awards by ring-fencing the award where applicable to protect P’s interests.
• Can be designed to wind up automatically once the deputyship order is sealed, with funds transferred to the deputy.

Disadvantages / risks

• Not a substitute for CoP authority: trustees must still act within the trust terms and may face challenge if decisions go beyond immediate needs.
• Set-up time and cost might outweigh the benefit if the deputyship order is imminent.
• Can potentially enter contracts but not without their risks, for example directly employed carers may need to move to the deputy’s employment via TUPE.

**This article appeared in the PDF’s Quarterly Journal Deputyship Matter (June Edition)**