Court of Protection – Part 8
I’ve looked at a lot of published cases, but what about the ones that I do, that I have had first had experience of?
I met a family who ran a business together and one member of the family had a stroke & was no longer able to take part in the business or manage their affairs, so one of the family members was appointed as deputy, no problem there.
Then as time progressed, the family realised that the way that they had set up their financial arrangements wasn’t going to work, as they had been set up on the basis that Mum & Dad would freely move their assets between each other, as many devoted married couples do. However the Court of Protection will not approve significant gifts without an Order of the Court, so they duly came to see me. All members of the family were in agreement as to what should happen and when asked by the Court confirmed that was the case in writing.
The matter involved a number of gifts to spouse and one of the children due to the outcome of the stroke, in that the stroke survivor had not been involved in the business. We made the application and the Court appointed the Official Solicitor to act for the person to whom the application related. The next thing that happened, is that the file went missing for a few months, so nothing happened. The Court did however give an early indication that they had understood what the issue was and were sympathetic to the application. It was clear what had been intended between spouses originally, which was great to hear early on.
When the file was found and the matter progressed, the sums involved, due to interest / inflation etc had changed, but the figures on the application had not. We ended up having a discussion about £10,000, which the Official Solicitor did not support, but eventually the Court agreed. Eventually the Court approved the application, but indicated that they wanted a new application for a Statutory Will to be made. The first application incurred legal costs of IRO£10,000 including the Official Solicitors costs.
The family did not like the terms of the Statutory Will that was being proposed, but I advised that it was not worth the legal costs to contest it, as since everyone was in agreement, we could do a Deed of Variation later potentially. But it kept the costs down to IRO£3,000 including the Official Solicitors costs.
With regards to costs, my file was costed by our costings team and sent to the Court for approval, they approved of about 90% of the costs, but reduced my fees by around 10%. When the first lot of Official Solicitor costs were sent through, I got our costings team to look at it & they found areas of excessive cost, so the deputy wrote to the Court asking them to re-look at these excessive costs. The Court confirmed all the costs without any reduction for the Official Solicitor.
The lesson for this is that the Court do do a fantastic job, they see very difficult family situations and try to make it better, even if it is just the least worst option! Not everyone will agree with their decision, that is human nature. What ever decision they so make though, costs a lot of money, so should not be undertaken lightly and without consideration as to how much it will cost.