Mentally Incapacitated Persons (Rights of Carers to Financial Information)
The Petition of Antoinette Mary Tricker,
Declares that the Petitioner, as the closest relative and carer of Feliks and Rosemary Zakrzewski, both of whom had been diagnosed with Alzheimer’s, was not permitted under client confidentiality rules to see the bill of costs submitted by the financial deputy for the above persons, a solicitor appointed by the Court of Protection, despite having serious concerns about over-charging.
Declares that when the above named persons died, as both executor and beneficiary under their wills, the Petitioner was deemed to have a financial interest in their estates and therefore had authority to investigate their financial affairs. In order to challenge the bill of costs, the Petitioner was forced to go through a long and costly judicial process. The Petitioner’s concerns about over-charging were found to be justified, resulting in a substantial refund to the estate. However, the above named persons were unable to benefit from this refund and further the estate was not reimbursed the costs of the legal action, resulting in a net loss to the estate.
Declares that the petitioner believes that where a person is mentally incapacitated, they are by definition unable to comprehend complex financial matters and unable to challenge a bill of costs. Consequently they are at risk of being financially abused by others, particularly where there is no third party input to an assessment of their costs.
Declares that relatives of mentally incapacitated persons are required to be accountable and transparent in providing financial information about the person to a financial deputy and declares that the Petitioner believes that the financial deputy should be similarly accountable and provide copies of any bill of costs and narratives to the person’s family.
The Petitioner therefore requests that the House of Commons urges the Government to bring forward legislation to allow the nearest relative of a mentally incapacitated person to see all bills of costs relating to that person during their lifetime, to ensure that where items are disputed, they are reviewed in collaboration with a costs officer prior to payment of any bill and to ensure that where charges are found to be inappropriate or excessive, the person should not have to bear the costs of a reassessment.
And the Petitioners remain, etc.—Official Report, 9 February 2012; Vol. 540, c. 1P .]
[P001007]
Observations from the Secretary of State for Justice:
The Court of Protection is a specialist court for all issues relating to people who lack capacity to make their own specific decisions. The court makes decisions and appoints deputies to make decisions in the best interests of those who lack capacity to do so.
The Court of Protection issues a Practice Direction on the rates of Fixed Costs that solicitors may charge for acting as a deputy. Copies of the Practice Direction can be found on the Justice website. Where the costs exceed the rates in the Practice Direction, the solicitor must apply to the Supreme Court Costs Office for an assessment of costs. Once their bill has been assessed, which usually takes two weeks, the court is able to direct payment out of the client’s estate.
Where a solicitor is appointed as deputy for a person who lacks capacity, they are bound by the legal duty of confidentiality owed to the client and cannot lawfully divulge information relating to the clients affairs without the express authority of the Court of Protection during the lifetime of the client.
If relatives of an incapacitated person suspect that solicitors may be overcharging, it is open to them to apply to the court seeking permission to have sight of the solicitor’s bill. As this option is already available, the Government has no plans to introduce legislation.