Re ACC 5 Years On: How Court of Protection Practice Has Evolved

It’s hard to believe that it’s nearly the fifth anniversary of the landmark case of Re ACC (and others) [2020] EWCOP9, published in February 2020. Since then, Deputies have significantly adjusted their practices to better address conflicts of interest.

It is now very much the norm that Deputy’s think twice before instructing their own firm, in the spirit of the PDF and our collaboration as members Re ACC has also meant that we can talk with ease with other law firms that offer similar services to ensure we find the right legal advisors for our clients.

Naturally, there can be a fine balance between matters where a Deputy will know it will not be cost efficient to obtain three quotes but we have learnt the best practice to deal with this now whilst being aware that the OPG will require a best interests note explaining why three quotes were not proportionate to the magnitude of the issue itself and there is a clear reason why it is in P’s best interests . Sometimes the cost of trying to explain the facts of the instruction to three separate solicitors in order to produce a quote is an inefficient use of a fee earners time and compared to the cost of the quote itself would be disproportionate to do.

Since Re ACC we have recently seen few other judgements being handed down by Senior Judge Hilder proving that the Court is still very alive to the issues of conflict. In the case of re PW [2024] EWCOP16 the court looked at the financial conflict of interest when a Deputy appoints an in house or connected fund manager to manage the financial portfolios for clients and it was clearly held that appointing connecting parties to manage P’s fund is a clear breach of the Deputy’s fiduciary duty. The Court is there to protect the vulnerable but also our profession and how we are viewed by the outside world looking in.

In the more recent case of Lumb v NHS Humber and North Yorkshire ICB & Anor [2024] EWCOP 57 (T2) (11 October 2024) Re ACC principles ripple through this case law in particular the point about the general authority of a Deputy and what is classed as a property and affairs decision in contrast to a health and welfare one. The case held that management of direct payments of a personal health budget as ‘representative’ in line with the NHS (Direct Payment) Regulations 2013 does not fall within the authority of a property and financial affairs Deputy. A separate court application will be required if a P&F Deputy wishes to continue to manage payments for P.

The case of Re ACC has certainly “opened the floodgates” to new points of law concerning decisions made by a Deputy and how that can be viewed as a “conflict of interest”. It has also increased scrutiny on any decision that doesn’t sit within the general power of a Deputy. It certainly means that as Deputy we are thinking harder about every decision we make, perhaps a reason why cost draftsmen and the SCCO have seen such significant increases in our Bills of costs. But that is another PDF discussion for another day…

Asha Beswetherick
December 2024