The Court of Protection is considering giving judges more power to decide who should cover the legal costs in disputes over an incapacitated person’s property, affairs or care.
Under existing rules, the costs for these disputes are normally paid out of the incapacitated person’s estate, although in some exceptional circumstances judges can deviate from this rule.
Under the changes now being considered, judges would be given greater scope to order those who are actively involved in the dispute – often family members of the incapacitated person – to pay these costs.
A public consultation paper is being drafted by the Court of Protection Rules Committee, but the exact timing of the consultation is not yet known.
This reform could mean that individuals who are incapacitated may no longer have to bear the costs of disputes over their property and affairs, as the costs would instead be met by the other parties involved in the dispute.
Giving the judge more discretion should provide vulnerable people with more protection and will hopefully limit wasteful legal disputes which can sometimes lead to an estate being eaten away, sometimes over little more than a matter of principle.
The timing of the consultation has yet to be decided but it is hoped that the proposed new powers will be agreed and put in place as soon as possible.