Court of Protection – Post Death update from the SCCO
As you may be aware, Costs Judge James and Costs Judge Whalan have provided some guidance recently on how to deal with costs following the death of P.
The note was produced following consultation with the Court of Protection and clarifies how to deal with these specific costs.
Costs up to the date of P’s death will be covered by the latest Deputyship Order, it has been confirmed that no further order is needed for any costs incurred whilst P is alive and lacks capacity.
However, the Court of Protection’s jurisdiction ceases upon P’s death, and the Court of Protection has no jurisdiction to make orders about costs incurred after death of P.
The note reminds us all that the Court of Protection Rule 19.11 is expressly limited to costs incurred during the lifetime of P for this very reason.
Subsequently, Costs Officers and Costs Judges assessing any Court of Protection Bill that contains any costs incurred postdeath, will be told to strike through them and annotate the Bill with the following wording: ‘Costs post-death are not covered by the existing deputyship order. The COP’s substantive jurisdiction ends with the death of P. As the COP has no jurisdiction to make orders about costs incurred after the death of P, the SCCO therefore has no jurisdiction to assess these costs under the COP Rules 2017.’
The other point made in the guidance note is that as long as the costs incurred are up to the date of P’s death, there is no need for Deputies to seek any further Order for those costs to be assessed before seeking an assessment by the SCCO. The note goes on to advise that any further Order being sought for those terms were going to be regarded as unnecessary and Deputies will not be paid for such work.
It is also accepted, within the guidance note recently provided, that there is friction between the current SCCO guidance and OPG guidelines on this point. Furthermore, it is our understanding that there has been some confusion on this point when consultation with the OPG has taken place. Subsequently, the relevant guidance/guidelines will be amended as soon as is practicable.
The next question for practitioners will be what happens to the costs relating to work done post death. The advice note confirmed that the SCCO was not in a position to issue any guidance on how to go about recovering costs incurred after P dies. Subsequently, this will be something for practitioners to give further consideration to and will likely require communication with those dealing the Estate of P.