Does your child need a professional deputy? The options for managing brain injury compensation | Bolt Burdon Kemp Does your child need a professional deputy? The options for managing brain injury compensation | Bolt Burdon Kemp

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Does your child need a professional deputy? The options for managing brain injury compensation

A child with a severe brain injury, whether due to medical negligence at birth or a traumatic accident during childhood, may receive a substantial amount of money from a compensation claim, sometimes as much as several million pounds. But who is responsible for making decisions about this money – making sure it’s invested wisely and used as intended throughout the child’s life, into adulthood and beyond?

It’s a question I’m often asked in my role as a solicitor in the Child Brain Injury team at Bolt Burdon Kemp, by parents concerned about the responsibility involved in looking after huge sums of money and worried about what happens when they are no longer around to keep an eye on things.

I explain to them how the law protects the compensation of those who can’t make decisions themselves by using court-appointed deputies.

Here’s how it works.

What is a deputy?

A deputy is a person appointed by the Court of Protection to make decisions for someone who cannot do so themselves due to lack of mental capacity.

The Mental Capacity Act 2005 sets out the legal framework and requires any decision made, or action taken, on behalf of someone who lacks the capacity to make the decision themselves, to be in their best interests.

My colleague, Ipek Tugcu, has written a helpful article explaining how a brain injury can affect mental capacity and how this in turn affects the legal claim. For now though, I want to focus on the role of deputies in cases involving children with a brain injury.

Types of deputies

There are two types of deputies:

  • Property and financial affairs (P&FA) deputies: They make decisions about an injured person’s property and finances.
  • Welfare deputies: They make decisions about an injured person’s medical treatment and care.

In most cases involving children with a severe brain injury, a deputy is appointed to manage financial and property matters, while parents or guardians usually handle decisions about medical treatment and care.

What does a P&FA deputy do?

A P&FA deputy will manage the child’s (or adult’s) property and finances by:

  • Receiving the compensation (including interim payments) and holding it in a designated bank account pending investment decisions.
  • Investing the compensation for income and capital growth, in line with Court of Protection approved investment strategies.
  • Entering contracts with suppliers of services, such as case managers and educational consultants.
  • Checking, approving and paying bills for care, therapy, equipment (such as mobility equipment including wheelchair accessible vehicles) expenses and so on.
  • Dealing with welfare benefits.
  • Handling property transactions and adaptations, including negotiating and entering contracts to rent, purchase and adapt properties, and consulting with architects, estate agents, conveyancing solicitors and other professionals.
  • Liaising and consulting with independent financial advisers, the family, the case manager and the Court of Protection as necessary.
  • Keeping detailed accounts and records, and reporting to the Court of Protection as required.
  • Ensuring appropriate security is in place.
  • Consulting with us, your child’s solicitor, while the claim is ongoing, to ensure spending is reasonable, and in your child’s best interests.

As you can appreciate, being a deputy is an onerous commitment and not one to be undertaken lightly, especially considering your child might outlive you.

Who can be a deputy?

While any responsible adult, including family members, can be a deputy, we always recommend appointing a professional deputy in complex cases where the compensation is substantial and must meet a severely injured child’s evolving lifelong needs.

Professional deputies are usually solicitors with expertise in acting for vulnerable clients and specialist knowledge of Court of Protection law and procedure. They have a comprehensive grasp of the Mental Capacity Act 2005 and will always act in your child’s best interests. They also have the expertise and administrative resources to manage large sums, take responsibility for tough decisions, and keep detailed and accurate accounts.

Relieved of these burdens, as parents or guardians you can focus on your child and family.

Appointing a professional deputy

At BBK, we arrange for you to meet with one or more of the trusted professional deputies we work with, from specialist teams around the country. Once you’re happy for the deputy to go ahead, they will apply to the Court of Protection to be appointed as your child’s P&FA deputy.

The Court of Protection assesses whether the nominated person is capable and willing to take on this responsibility. Once satisfied, the court will order the appointment and outline the deputy’s powers and limitations. The deputy must act within their prescribed authority. For example, deputies cannot sell or purchase property without the court’s express authority.

Oversight and accountability

The Office of the Public Guardian (OPG) oversees deputies, ensuring they act in your child’s best interests. Deputies must keep detailed records and account for all decisions and spending. These are reviewed by the OPG to prevent misuse of funds.

Transition to adulthood

When a child turns 18, they are presumed to have the capacity to make their own decisions, unless there is evidence otherwise. We ensure the medical evidence for your child’s case addresses this question at an early stage in the litigation and certainly long before the case concludes, so if a professional deputy is to be needed in future, they are appointed well before your child reaches adulthood.

Who pays the professional deputy?

Once the professional deputy is appointed, we ensure they prepare a comprehensive statement explaining what work is likely to be involved, how much it is likely to cost and what the Court of Protection fees are likely to be, over the course of your child’s lifetime. We include these costs and fees in the claim for compensation.

The deputy must submit annual bills to the Court of Protection, which must approve each bill before the deputy can be paid from any compensation they are holding, whether this is in the form of interim payments as the case goes along, or final compensation once the case is concluded.

After the legal case ends, the deputy continues to manage the compensation and must continue to get Court of Protection approval for bills before they can be paid.

How Bolt Burdon Kemp can help

A professional deputy may be involved in your child’s life for a long time, so we take care to ensure they are the right person for you, your child and your situation, right from the start.

We will always arrange for you to meet with the deputy we propose, without any obligation, so you can have a chat and get to know them before deciding if you want to go ahead. It’s important you’re comfortable with them and the decisions they make.

While the claim is ongoing, we frequently need to refer to professional deputies for quick decisions on expenditure, as you may need to do once the claim is concluded. This is why we only recommend deputies who are quick to respond and have good administrative support.

Our Child Brain Injury team solicitors work with the most experienced professional deputies in the country. They are leaders in their field and are on the Court of Protection panel of approved professional deputies. We take pride in the close working relationships we have with them and are confident they will continue to support you and your child with skill and empathy long after the litigation ends.

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