Article last updated 18 March 2024.
A membership organisation for solicitors and legal executives who act in professional deputy teams, the Professional Deputies Forum (PDF) aims to support and represent members through consultation with key stakeholders and by providing training, resources, events and networking opportunities. Founded in 2019, the organisation is going from strength to strength: it has a growing database of around 500 members and represents around 70% of all court-appointed deputyships.
Raising the standard
Given that training for Court of Protection (COP) work has, historically, largely been done ‘on-the-job’, one of the PDF’s key objectives is to develop a comprehensive training and accreditation programme catering to different levels of experience and qualification.
“Ultimately, we want to provide our vulnerable clients with the best service and ensure they receive the right levels of assistance. This new set of standards and accreditation will help demonstrate that a deputy has the necessary knowledge and skills to support a client across all the various areas that may affect them,” explains Stacey Bryant, Partner at Enable Law and recently appointed Chair of the Professional Deputies Forum,.
The PDF has put together a curriculum in consultation with subject matter experts, the Office of the Public Guardian (OPG) and the Official Solicitor to help ensure it meets the necessary requirements and fills any learning gaps. It plans to roll out the foundation and intermediate level training in May and June 2024, and launch the advanced training later this year.
Ensuring the profession’s sustainability
A key challenge facing many firms offering professional deputy services relates to their financial viability. As Stacey explains, unlike most other legal services, the hourly rate for COP work is set by the court – and the rate doesn’t necessarily increase regularly, or in line with inflation. In addition, recovering the full cost of work as assessed by the Senior Court Costs Office (SCCO) isn’t always possible, and it currently can take a long time, often more than a year, for files to be reviewed and bills approved.
“This is affecting cashflow for firms, particularly smaller firms, making it harder for them to be financially sustainable over the longer term – which in turn can impact clients,” Stacey says. “It’s imperative that clients are offered choice when appointing a deputy. We don’t want to be in a position where there are only a few very large firms providing these services; we need to make it sustainable for all.”
As such, the PDF is currently investigating what can be done, including how it can potentially work with the OPG, COP, and SCCO to hopefully update some of the processes. A briefing paper commissioned by the PDF on the sustainability of the profession is available to download from its website.
Dealing with connected relationships
Stacey also discussed the upcoming judgment of re PW, which is currently front-of-mind for many given its potentially far-reaching implications in terms of how professional deputies appoint independent financial advisers (IFAs) or investment managers. “Although the case concerns the potential conflict of interest arising from a deputy appointing an in-house IFA or investment manager, the judgment could also affect any professional deputy firm appointing an IFA or investment manager with which they have an existing business relationship,” Stacey explains.
Her Honour Judge Hilder heard the case in late January 2024 and, at the time of publishing this article, a judgment on the case had not been handed down.
Given the broader implications of the outcome, the Official Solicitor and OPG were also involved. As Stacey outlined, their view appears to be that the use of a 'beauty parade' and 'score card' approach – or simply informing the client and their family of a connection between the deputy firm and the financial adviser – may not be sufficient to address any potential conflict of interest.
Of course, Her Honour Judge Hilder is well attuned to cases concerning conflicts of interest, with Stacey using the significant ACC judgment as a case in point: “One of the outcomes of the ACC decision was that a deputy must first seek the Court’s approval before instructing their own firm to act on behalf of their client – or proceed at risk of costs. This means deputies must now have a very compelling reason to want to appoint their own firm. That said, the client’s best interests must always remain at the forefront of the decision.”
In terms of re PW, Stacey expects the judgment to consider several issues relating to these connected relationships, including:
— What warnings should be given to the client/their family before appointing a connected IFA/investment manager?
— If a deputy firm has a connected IFA/investment manager, should independent advice be sought as to whether it’s appropriate to introduce them to the client or include them in a 'beauty parade'?
— Will a court application be required in all cases where there is a connection prior to the appointment – as per the ACC decision?
— Should there be complete transparency as to the deputy firm’s financial benefit in respect of the fees it earns from appointing a connected IFA/investment manager?
— In situations where a connected IFA/investment manager has already been appointed, will there now be a requirement to either arrange for their replacement with an independent IFA/investment manager – or to make a court application to ratify their appointment to address the potential conflict?
Key takeaways for deputies
Stacey believes that any judgment is likely to focus on ensuring the client and their wellbeing is always put first, and that any financial management decisions are made in the client’s best interests. She suggests that while we wait for the judgment, it may be prudent for deputies to err on the side of caution when appointing an IFA/investment manager if there is a potential conflict of interest.
If you’d like to find out more about the Professional Deputies Forum and how you can join, please visit www.deputiesforum.co.uk.
