Nicole James-Julio, Trainee Solicitor at Express Solicitors
By Nicole James-Julio, Trainee Solicitor at Legal Futures Associate Express Solicitors
What you need to know to support your clients
In certain clinical negligence claims such as cases involving catastrophic brain injuries, it is important to discuss the potential need for a professional deputy with the Claimant and/or with their family or guardians to explain how a professional deputy can assist, as well as the advantages and disadvantages of the role.
A professional deputy has a vast and complex role; however, the main purpose of a deputy is to support and advocate for the Claimant. Appointing a professional deputy can assist at the point in which the Claimant is awarded a large sum of compensation. This can be extremely overwhelming position for the Claimant and also can leave the Claimant vulnerable to people who may want to take advantage of their newfound wealth.
The Claimant may need assistance in ensuring that proper financial planning is in place to make sure that their compensation lasts for them as long as it is intended to and provides for their needs over their lifetime. A professional deputy can work with the family to ensure the Claimant’s best interests are protected, especially in cases that involve a young adult.
A family member of the Claimant may want to act as a deputy in the clinical negligence claim, however, the responsibilities of a deputy are significant. In cases where a professional deputy may be required, the Claimant will often require a high level of care and the family members are already caring for the Claimant in many ways. It must be explained to the family that acting as a deputy can be an overwhelming task for a family member if they wish to act as one.
An example of the responsibility of a professional deputy will include:
- Explaining, advising, and supporting the Claimant and/or family in relation to arranging financial planning and management to ensure that any compensation is appropriately managed in the Claimant’s best interests.
- Ensuring that the Claimant has access to the best possible medical care, rehabilitation and support services.
- Liaising with the Claimant’s legal team and other professionals involved in the claim to ensure that the legal proceedings are progressing.
- Providing the Court of Protection with accounting records, details of funds spent, and reports.
It must be noted that the Court of Protection may appoint more than one deputy in a clinical negligence claim. If this is required then it is usually a member of the Claimant’s family who will act as another deputy in the claim, however, the family will work jointly with the professional deputy to ensure that the best interests of the Claimant are met.
There are often misconceptions about instructing a professional deputy and it will be helpful to clarify the role of a professional deputy with the Claimant and their family. Many people believe that a professional deputy will tell the Claimant or their family what they can and cannot do with the compensation. It must be stressed that this is not the deputy’s role. They are there to advise, support, and assist the Claimant as well as working closely with their solicitor, case managers, and financial planners.
A professional deputy is a specialised role, and it should be explained that the person appointed as a professional deputy must take into consideration the Mental Capacity Act 2005 (Practice Code) and the eight standards that professional deputies must take into account. These are:
- Awareness of the Mental Capacity Act 2025.
- Best interest decision making. The deputy must appropriately engage with the Claimant taking into account the Claimant’s circumstances. This includes visiting the Claimant annually.
- All deputies must manage the Claimant’s finances appropriately depending on the Claimant’s assets. This includes that the deputyship costs are in proportion to the Claimant’s assets.
- The deputy must open a deputyship account in the Claimant’s name. As the solicitors managing funds on behalf of the Claimant. The solicitor must adhere to the Solicitors Regulatory Authority (SRA) Accounts Rules. Rule 4.1 states that the client’s funds must be kept separate from money belonging to the authorised body. Rule 3.3 provides certain restrictions for the use of client accounts.
- All deputies must manage the Claimant’s property in line with the deputyship order and the Claimant’s best interests.
- All deputies appointed in health and welfare cases must comply with the authority conferred by the deputyship order and make sure that the Court of Protection is informed about key decisions made on behalf of the Claimant. This includes details in the deputy’s annual report of any decisions the deputy has made to allow or refuse health care for the Claimant for the court to consider.
- The deputy must make sure that case files are subject to regular internal audit adhering to the guidelines of your regulatory body where appropriate.
Once a professional deputy is appointed a court order is drafted and sent to the Court of Protection. This will be in place as long as the Claimant lacks capacity. If at any point the Claimant regains capacity, then the professional deputy can be discharged from their role. It is important to discuss with the family that if there is a conflict with the deputy, they can request the Court to remove them and then appoint someone new. It is, therefore, important to maintain good communication and contact with the family to gain insight into the relationship between the professional deputy and the family.
A professional deputy can be appointed during litigation. For example, once the Claimant has received an interim payment, a deputy can assist the Claimant and their family from that point by arranging any future treatment with the family. A professional deputy can also be appointed after settlement to consider whether any further steps are required such as purchasing a home for the Claimant.
As a solicitor instructing a professional deputy, several points should be discussed with the Claimant and their family. Firstly, a professional deputy will charge a fee for their services, and it will be paid from the Claimant’s damages. It should be discussed with the Claimant that the professional deputy must send a bill to the Senior Court Costs Office, which will consider whether the fee is appropriate. In addition, discussion with the Claimant or/family should include the frequency of the progress reports from the professional deputy and the forecast of the Claimant’s pedicure.
It is crucial to remind the family to get a case manager involved as the professional deputy will work closely with the case manager in the clinical negligence claim. The purpose of the case manager is to ensure that the welfare needs of the Claimant and their family are being met. The case manager will consider all aspects of the Claimant’s daily life to ensure that the Claimant is receiving all the care and rehabilitation they require and provide updates to the professional deputy. The case manager will also liaise with the recommended expert and ensure that the Claimant attends the necessary appointments. The case manager will also work with the deputy to set up a care package for the Claimant (if required) to ensure that the Claimant will receive extensive care.
A deputy will be involved in the Claimant and their family’s life for a long time, so it’s important to appoint someone who understands the whole situation and family dynamics.
