Mental Capacity Case


Charles J


In this case Charles J ruled that the practice of making bulk orders for the approval of a deputy's remuneration was wrong and that remuneration was a best interests decision that had to be made on an individual basis.

In a judgment that was significantly critical of previous Court of Protection practice, Charles J ruled that the Court of Protection could and should not approve remuneration for deputies on a bulk basis but, rather, should assess each case individually, see paragraphs 18-19, 21, 24-26 of the judgment.

Charles J held that the bulk orders should all be reviewed by the COP of its own motion without the need for an application fee (see paragraphs 93-94) but until an order that has been sealed has been set aside or varied, it can still be relied upon, see paragraph 27.

Charles J made clear that COP PD 19B (which sets out fixed costs for various types of work), is not a presumptive scale but rather a relevant factor to be taken into account when deciding the level of a deputy's remuneration, see paragraphs 34-35.

As regards the actual case, P had limited means, so the question arose whether a solicitor's higher charging rates (when compared to those of a local authority deputy) could be justified. In the end, from paragraph 55 on, the judge held that in the individual case, they were. That was on the basis of a more personal approach that had resulted in additional benefit to P.

In many cases, the expenditure on the deputy will be accepted by a local authority as disability related expenditure and so reduce P's means and liability to contribute to care costs. In those circumstances, the issue will not be so acute as P will suffer no loss by virtue of a solicitor deputy's higher changes.

Charles J also held that the court had power to authorise pre-appointment expenditure, see paragraph 49 and that orders should include an inflation index for charges (the CPI), see paragraph 88.


There is always a balance to be struck between administrative convenience and specific consideration of individual cases.  In his parting shot as Vice-President of the Court of Protection, and in line with other case-law criticizing "bulk" approaches, Charles J made clear that he considered that a regime had developed which had swung considerably too far towards the side of administrative convenience.