- July 20, 2021
- By Nick Brown
- 0 comments
Court of Protection – Property and Affairs Deputyship Post Settlement Considerations
The protection provided by a Deputyship structure, is often required in cases where an individual lacks mental capacity but has been awarded a substantial damages award following the successful conclusion of a personal injury or clinical negligence litigation claim.
Litigation claims are often complex and can take many years to resolve. This is often a stressful time for Claimants who are trying to come to terms with what are often life changing injuries. The complexities of the litigation can place additional pressures on the injured party and their families, requiring them to balance increased care needs alongside a complex legal process.
Following settlement of a claim, there will be many considerations to address to help ensure that an injured party is cared for, for the rest of their life. Where a professional Deputy is appointed, there will be a number of important post-settlement matters to review and consider. I comment on some of these below:-
- Settlement Award
- Firstly, a Deputy will need to consider the value of the final award and whether a Claimant recovered the full value of his claim. In some cases, there is a shortfall in the value of compensation recovered, caused by an element of contributory negligence. If 100% of the value of the award is not recovered, important discussions about the future application of the injury party’s fund will need to be undertaken.
- It is best practise for the Deputy to obtain up-to-date costings for all members of the treating team, projected over a period of 3 years, in order to create and maintain a comprehensive budget of expenditure.
- The Deputy will also review P’s income, including any benefits not already being claimed, and look at any larger items of expenditure needed in P’s case.
- Case Management & MDT
- If not already in place, the Deputy will look to appoint a case manager, who will assess the immediate needs of the Protected Party (‘P’) and will work with the Deputy, providing day-to-day support in order to analyse the most appropriate rehabilitation/treatment goals for P.
- In addition to the case manager and Deputy support, P would likely be assisted by a multi-disciplinary team (‘MDT’), providing combined therapeutic and rehabilitative support. These could be comprised of support workers, occupational therapists, neuropsychologists, or speech and language therapists, depending on P’s needs.
- As part of the litigation claim, an accommodation expert may have commented on the suitability of P’s current residence, and ultimately recommended a relocation. The Deputy will be required to consider whether P’s property is suitable or requires any adaptions to meet P’s longer term accommodation needs.
- IFA Advice and Investment
- Once the budget of income and expenditure has been drafted, the Deputy may look to obtain advice from an Independent Financial Advisor (IFA) to comment on its sustainability in the context of the settlement award and P’s predicted life expectancy.
- The IFA would then provide recommendations in relation to setting up an investment portfolio in order to ensure that there are available funds to meet P’s needs throughout their lifetime.
- Another important consideration for the Deputy following a large settlement award, would be whether P has a Will in place, and if so, whether it needs to be amended or reviewed in light of the settlement.
- It will need to be ascertained whether P has testamentary capacity to make a Will, and if not, an application to court for a Statutory Will may need to be made.
- A statutory will involves a very detailed and comprehensive application that factors in P’s feelings, as well as input from P’s family and MDT if relevant.
- Report to Court
- The court order appointing the Deputy will require them to report to the court following settlement, providing them with a summary of the settlement award, and a budget of estimated income and expenditure for the next 3 years. The Court may require further information regarding the proposed steps to be taken and may order that the Deputy increase the level of insurance in place, to account for the increased financial responsibility following receipt of a potentially large settlement figure.
Whilst the receipt of the damages award signals the end of the legal process, there is much work to be done in the post-settlement phase. Many of our clients find the professional guidance that we as experienced Deputies are able to provide, to be invaluable. We always adopt a collaborative approach and take great care in ensuring that our clients are fully supported in the next phase of their rehabilitation journey.
*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.*
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