Safeguarding client interests: the role of deputies in litigation proceedings

Clients pursuing negligence claims may lack the mental capacity to make specific decisions due to factors such as brain injury, dementia, or developmental challenges. This can be particularly challenging during litigation that often involves complex financial aspects such as compensation awards. This is where a deputy can provide crucial guidance and support.

The role of a deputy

A deputy, appointed by the Court of Protection to act in the client's (referred to as P) best interests, safeguards P's financial well-being throughout litigation. This involves:

• Consultation on financial decisions: A deputy will be consulted on financial decisions related to the case, such as approving legal fees or accepting settlement offers. The deputy will consider P's lifelong needs and how any compensation award could meet those needs. This can be challenging and often requires discussions between the deputy, the solicitor handling P's litigation, the family and P themself where appropriate.
• Court approval for the use of funds: The deputy may need the Court of Protection's authority to use P's funds for certain matters, such as purchasing a property or incurring legal costs. This ensures responsible financial management and protects P from potential misuse. If permission to use P's funds outside what is known as 'general management' hasn't been provided as part of the initial deputyship order, the court requires an application that outlines the reasons for using the funds and how it benefits P. These applications can be complex and require the deputy to collate evidence for the court's consideration.

Who can be appointed as a deputy?

The deputy can be a family member, a close friend, or a trusted professional. When a claim involves large settlement awards, the court is likely to consider a professional deputy is appropriate, due to their experience dealing with complex damages awards. The role of a professional deputy is to support P and their family and to ensure P is not taken advantage of.  Being a deputy can be a demanding task, and appointing a professional deputy can ease the burden for some already overwhelmed families. It can also provide them with support on complex matters, such as support services, investments, property purchases, adaptations, and other intricate issues.

The deputy as an expert witness:

Professional deputies, with in-depth understanding of managing finances for incapacitated individuals, can serve as valuable expert witnesses in litigation proceedings. Their statements can explain:

• Typical deputy duties: This clarifies the scope of a deputy's responsibilities, such as managing investments, handling ongoing expenses, and ensuring P's financial security.
• Quantifying a deputy's work: Expert witness statements can help establish the value of a deputy's ongoing work, which can be factored into the compensation claim.

Deputyship costs as part of settlement

In cases of permanent incapacity, a deputy will likely take over managing their finances long-term. If these ongoing costs are a direct consequence of the negligence that caused the incapacity, it may be included in the compensation claim. This could contribute to the cost of professional deputy fees, which are the costs of the deputy's ongoing services.

Fieldfisher's role:

At Fieldfisher, we have extensive experience acting as professional deputies and handling complex deputyship situations and personal injury trusts. Our team works closely with clients, families, and support networks to ensure P's needs are met throughout the litigation process and beyond.

We understand the delicate nature of managing significant settlements to meet P's lifelong needs. Our team's combined legal and financial expertise allows us to create a comprehensive plan that safeguards P's financial security and well-being.