Birth Litigation UK

This blog post is to discuss the complex issue of Deputies and their role in your child’s life.  For a general idea on what a Deputy does, have a look at my ‘Legal Agencies’ and ‘interim’ section on the website.  I have looked carefully at the legal side and asked for help and advice from people with more experience of deputies around birth injury awards. 

A Court of Protection Deputy will have control of your child’s money and how it is used to support your child. You have no control unless you are a joint deputy and even then you cannot make unilateral decisions on how the money is used.

This is one of the hardest concepts to grasp. Someone unrelated to you or your child is making major decisions affecting their life, so you have to learn to work with the Deputy, trust them, but remain vigilant that you are getting the best value for money from them. You must have transparency and be encouraged to ask questions to get full disclosure.

This blog is for information only and does not constitute legal advice. Sources used are NHS Website, Gov UK Websites, legal websites and personal testimonies.

A Deputy is required in most cases following admission by the Defendant in order to access interim funds and to manage the award post settlement. A court appointed Deputy is someone who manages the finances of the injured person under the stewardship of the Court of Protection.  Deputies (professional or lay) can also have control of the persons Health and Welfare, but in the case of BI (birth injured) children, parents will almost always have control of this aspect.

Under most circumstances where a deputy is appointed to care for someone who previously had capacity it will be a family member or a trusted person or an independent advocate.  However, in the case of Birth Injured (BI) children the sums awarded are usually too high for family members to be given control of their child’s financial interests.  If the award made to the child is over £2 million it is unlikely the COP will allow the parent to become sole deputy (aka ‘lay deputy’). In the past there were rare instances of parents misusing the child’s award, hence the preference now for court appointed deputies.   Deputies are needed if the child is under 18 or if they lack ‘capacity’.

Parents often feel excluded with this system as they have to apply to the Deputy for specific high cost items, via their case manager if one is engaged, or direct.  Following admissions in the claim and going into ‘Interim’, your solicitor will probably invite you to use their in house Deputy.  It’s up to you to decide whether you want to take their offer as you can go elsewhere.  However at the conclusion of such a difficult process years in the making, you may find it easier to do this in the short term and review following settlement.  During Interim when the claim is being ‘quantified’, your litigation solicitor will still work with you and the new Deputy and their fees will be costed and claimed from the defence.

So how is capacity measured?  In the case of a BI child who is verbal and able, who shows normal intelligence, be doing well at school and reason in an age appropriate way, capacity will be assumed.  Sometimes the child has more significant disabilities, but is capable of making their own decisions on certain issues, such as what to eat, but there may be doubt over whether they have the capacity to manage money appropriately.  They may need a formal testing procedure to assess their capacity.   However, if the BI child is severely affected and, importantly, non verbal or have significant loss of their hearing/vision/speech, it is often assumed they have an intellectual disability and testing is not suggested or sought.  

Parents however, know their child better than anyone.  If they feel their child is being assumed not capable regardless of their level of disability, but they feel differently, they can commission an independent test.    There are agencies that will test for capacity, such a Nellie Supports, https://www.nelliesupports.com/ which uses qualified social workers trained in these assessments.   As parents we seem to have our hands tied when it comes to mental capacity and it can be a fight to have the child assessed, particularly if the child uses AAC (Augmentative and Alternative Communication) such as eye gaze or switch adapted communication. 

If a child has capacity, when they reach the age of 18 they can manage, with input from a financial advisor, their own finances.  This usually involves a Trust fund. The parents will assist a more disabled child and they can seek the advice of a financial advisor and be a trustee.

Mental Capacity Act Code of practice https://assets.publishing.service.gov.uk/media/5f6cc6138fa8f541f6763295/Mental-capacity-act-code-of-practice.pdf

So how is Mental Capacity Assessed if the child has significant communication difficulties? I would suggest Nellie Supports https://www.nelliesupports.com/ and an independant assessment on whether your child is able, in the future as an adult (18), to manage their own lives including their financial affairs.  The Mental Capacity Act is a law that sets out how a person’s mental state impacts on their decision making, and what can be done to best protect and promote the interests of the individual.  Clearly a child cannot make important decisions until they reach legal adulthood. 

The Court of Protection has jurisdiction over the property, financial affairs and personal welfare of people who lack capacity to make decisions for themselves.

It may be that an assessment flags up limited capacity, that is the ability to make certain decisions but not have overall control of their finances, because the issues are too complicated.  The decisions the child can make must always be taken into account and their consent for certain things be accepted, such as their wish to get married.

Parents may feel it is for the best that someone competent and whose power has restraints on it, manages the considerable sums that are often awarded, as they will need to be managed well enough to last the child’s lifetime.  I would have no issue with someone who will provide sound financial investments for the child and ensure the child’s security for life.  What I personally would find difficult is losing complete control of my own child and his security.

In BI children who are deemed not to have capacity and who have been awarded substantial damages, The COP will appoint a Deputy no matter what age they are.  BI awards are usually very large and the COP takes the view that finances need managing by a suitable person.  The Deputy does pay a security bond to the Office of the Public Guardian which oversees them and which acts as insurance, although how much this would cover were any wrongdoing to occur, I would definitely check. 

Deputy Standards PDF https://assets.publishing.service.gov.uk/media/63fe02dce90e0740d715a261/opg-deputy-standards.pdf

Some legal firms who have run the legal case for you will offer the services of a Deputy.  This may not be an ideal system, especially if they do not allow joint deputyship.  There is the possibility that the Deputy will have a conflict of interest and the situation may arise.  (See parent comment below).  This has been said so I would ask for very clear costs from the Deputy and ask this question directly.  I would also look at other firms to see what their costs would be for the same work.  Your litigation team and your Deputy at the same firm work as separate entities, the Deputy being part of their COP team. During Interim it may just be easier to go with this and reassess following Settlement as often our emotional reserves are low and we just want to relax a little.

Link to a blog on removing a court appointed Deputy https://www.jmw.co.uk/blog/removal-of-attorney-or-deputy/how-to-remove-court-appointed-deputy

A professional deputy will take full responsibility for managing the individual’s finances, involving the family in any decisions that are made. Practical support might involve some or all of the following

• Ensuring funds are available to meet day-to-day needs
• Setting and monitoring budgets with family members and other professionals
• Dealing with the employment of carers and administering the payroll, contracts, PAYE,
  National Insurance, pension auto-enrolment and employment disputes
• Liaising with case managers and other professionals in respect of care teams, therapists
  and other needs
• Paying regular household bills
• Arranging the investment of any settlement or damages awarded
• Buying and / or adapting a property to meet the person’s needs
• Dealing with benefits applications
• Looking into the availability of statutory funding to meet care needs
• Making applications to the Court of Protection
• Preparing an annual report and accounts for the Office of the Public Guardian and
  submitting tax returns
  (This is not an exhaustive list.)

Costs depend on who you use and how much you want them to do, although costs related to the court are decided by the Court on a fixed cost basis. Your Deputy will give you a list of their fees, those of their paralegal, email costs and so on. It’s a good idea to check with other parents to see if these fees are comparible.

Some legal firms do not allow joint deputyship.  If you want joint deputyship there is no other option than to apply to the COP for joint deputyship with another deputy.  This can be with another legal firm that allows this.  Applying for joint deputyship can be expensive and time consuming but ultimately gives you the best of both worlds, some control over your child’s money but also someone you can collaborate with.    Most importantly you can see where the money is going, and transparency is something families put as a priority. 

• Meet with the proposed Deputy to see if you feel comfortable with them.  You are quite at liberty to say no, and either ask for someone else, ask to think about it or choose someone from another law firm. 
• Check all financial communications sent by the deputy to ensure they are correct and reasonable.  Ask on the facebook group what other people are paying, and contact other legal firms who have joint deputyship.
• Communicate with the Deputy’s paralegal wherever possible as this reduces fees.  Avoid multiple emails if the information can be given in one go.  They’re charged each time.