In personal injury cases, where P has sustained a brain injury and has subsequently lost mental capacity, a professional deputy may be appointed to manage P’s property and financial affairs.

The Court of Protection usually prefers to see professional deputies to be appointed in these very complex cases. A professional deputy will have experience in managing significant funding, as well as managing the complexities of involved care packages and other treatment needs.

A professional deputy is usually appointed at the stage of litigation where either an interim payment has been received (or is imminently expected); or where liability has been settled; and/or where a final damages award is due. However, every appointment will be individually considered within the context of a specific case.

The costs of having a professional deputy appointed to act for an incapacitated individual, are usually claimed as part of P’s damages award and are projected forward, often for the remainder of P’s lifetime, within the schedule of special damages. It is therefore important to be able to demonstrate to the Court what level of input a professional deputy might have, so that the experts in the case can better judge future input for a specific individual.

The professional deputy’s role within PI/CN litigation

It is crucial that the deputy carefully manages any interim funding that has been released on account of the damages award and will have a duty not only to account to the Court of Protection, but also the litigator progressing the claim on P’s behalf. It is imperative that the Deputy maintains accurate itemised schedules detailing P’s expenditure as any failure to manage the funds in line with the expert or clinical team recommendations may have an adverse impact on the overall value of P’s claim.

The deputy will have regular communication with P’s litigation team and seek information regarding P’s claim, including clinical reports obtained during the course of litigation. These reports can include valuable guidance to the deputy as to how P’s funds should be applied to meet P’s care and case management needs.

There are certain circumstances where the interim payments that are received are insufficient to meet P’s ongoing care needs. The Deputy has a duty from the inception of their appointment to consider other funding sources and establish alternative means of funding such as from the local authority via direct payments.

When P’s interim funds are running low, the deputy will have a duty to inform the litigator that a further application should be made for additional interim funding to ensure that P has sufficient funds to meet P’s on-going care needs.