Not eligible for legal aid in Court of Protection proceedings, what help can you get?

Legal aid is only available in limited cases to bring or respond to proceedings in the Court of Protection. It is always available to people who have been deprived of their liberty and want to challenge this, but in other cases it will only be available if you meet stringent criteria concerning your finances and the merits of your claim. So, what happens in cases where legal aid is not available and you need access to support?

Rachel Turner, Court of Protection lawyer with Miles & Partners Solicitors in central London, explains your options.

Fixed fee initial interviews

If you require advice or representation and do not qualify for legal aid, we can act for you on a private basis if you can afford it. We offer an initial fixed fee consultation for you to discuss your concerns with us. We can advise you on the steps you will need to take, the likely costs of taking them, and how you might be able to pay for them.

Fixed fees throughout the case

Once we have advised on the initial steps needed, some clients prefer to action them and take responsibility for the case themselves, returning to us for advice as necessary. In such cases, we would just charge you a fixed fee for each consultation and any preparatory and follow up work.

Other clients prefer to have assistance throughout the case, but choose to break the case down into stages so that they know the cost of that stage from the outset.

Hourly rates

Where, usually due to the complexity of the case or the unpredictability of the other parties, it is not possible to proceed on a fixed fee basis, you can rest assured that the hourly rate we quote will be reasonable and highly competitive for the type of support you require. We will of course provide you with regular costs updates as your case progresses.

If I am not eligible for legal aid, do I always have to pay legal costs?

In proceedings before the Court of Protection concerning a person’s welfare the costs we agree will be payable by you, unless we can persuade the court that another party has acted particularly unreasonably. However, it is reassuring to know that as a rule you will only be responsible for your own costs of the case. Even if you are not successful you will not be ordered to pay anyone else’s costs unless you have behaved inappropriately, for example by being unjustifiably difficult or obstructive.

In property and affairs cases, the person about whom the application relates may well be ordered to pay your costs if they can afford them. However, in certain circumstances the court may order that another party pays them, again if they have acted particularly unreasonably.

What about the cost of court fees?

You only pay court fees if you are the applicant in the proceedings. If you bring the claim on behalf of someone else, and do so as their ‘litigation friend’, we may be able to help you secure a reduction in any court fees that are payable. You may also be able to get a reduction in fees if you are applying for yourself and you have little or no capital or savings, are on a low income or are in receipt of certain benefits.

Consider whether someone else could be asked to bring the case to court

In some cases, it may be possible to ask someone else to bring the case to court on behalf of yourself or your loved one, for example, the local authority responsible for looking after you or your loved one. Getting someone else to take the initiative and bring the matter before the court can save you a significant amount of money and may force the court to appoint someone to represent your interests free of charge. We can advise you on whether this may be an option.

If you need advice on Court of Protection proceedings, or on any mental health or mental capacity issue, please contact Rachel Turner at Miles & Partners Solicitors on 020 7426 0400 or email rt@milesandpartners.com.

The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.