Court of Protection judgement warns deputies against close association with one party

25 November 2010

A solicitor who applied to be appointed a health and welfare deputy, despite a clear conflict of interest, must pay all legal costs associated with her unsuccessful application.

So the Court of Protection has declared in EG V RS, JS & BEN PCT (2010, case no.1110237109). It described its ruling as “a cautionary tale for all those who put themselves forward as professional deputies when too closely associated with one party.”

The case concerned a brain-damaged woman (referred to as RS) whose close family were bitterly disputing the management of her care and finances.

The disabled woman’s brother-in-law (referred to as CH) shared her home. He had been appointed as her property and affairs deputy and was receiving advice from a solicitor (referred to as EG).

A fourth person – the RS’s sister, referred to as JS – was quarrelling with CH about the limited contact he allowed her to have with the disabled woman. (The sister, JS, is the estranged spouse of CH, which probably explains some of the acrimony.)

In January 2009, the sister (JS) asked the Court of Protection to appoint a health and welfare deputy for the disabled woman. The following month, the solicitor (EG) herself applied for this role, but JS contested her application because the solicitor was already acting for her antagonist CH.

In August 2009 a district judge refused EG’s application, on the grounds of conflict of interest, and ordered her to pay all costs.

These included costs incurred by the sister (JS), by the Official Solicitor, and by the local primary care trust, which had naturally been closely involved. The costs order was made against EG personally, not her firm DWF LLP.

EG then asked the CoP for leave to appeal against the costs order, on the grounds that she had drawn to the lower court’s attention the fact that she had already been advising one party.

Her request was refused. “I cannot see how EG could begin to consider herself being seen as an impartial deputy no matter what her good intent may have been”, said the CoP judge (HHJ Martin Cardinal). “She had a plain history of acting for one of the warring parties. She should meet the costs of an application she ought to have known would fail.”



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