ACC and Others: Guidance from the OPG
The OPG has recently issued guidance to Deputies following the Judgment in the case of ACC and Others. The guidance focuses on the resolution of conflicts of interest when balanced against the frequent need for Deputies to obtain specialist advice, when exercising their broader Property and Affairs duties.
It is clear that specific authority to conduct litigation on behalf of P will be required and this should, as a matter of best practice, be supported by a detailed ‘cost:benefit’ analysis indicating why the proposed litigation is in P’s best interests. Depending on the complexity of the litigation proposed, this might have to be supported with advice from Counsel, commenting on prospects of success.
Where a Deputy wishes to incur legal or other charges associated with conducting the proposed litigation, prior authority for incurring those costs, must be sought, if those costs are to exceed £2,000 plus VAT.
This is particularly pertinent in circumstances where a Deputy might wish to instruct a legal team “in-house” as part of the wider services that a Deputy’s office might offer, for the resolution of a contentious matter. A decision to instruct “in-house” must be made in P’s best interests and will require the Deputy to demonstrate that alternative quotes from appropriate providers have been obtained. Deputies will be required to address any real or perceived conflicts of interests when proposing to instruct their own firm.
There will of course be certain circumstances where obtaining 3rd party input on a matter will be required urgently, and prior authority to incur those costs, cannot be sought in advance. The OPG highlights that whilst retrospective authorisation for such funding might be available, this is not guaranteed, and will be considered on a case-by-case basis with the Deputy’s firm potentially taking the responsibly for those costs, having deemed to have proceeded, at their own risk.
The full note can be found here and provides a useful practical summary of the most pertinent points raised in the Judgement.
*Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*