In our latest costs column, Jack Cundick gives some tips on completing the OPG105 to maximum effect
From 1 March 2016, deputies have been required to submit a breakdown of the costs involved in their case as well as an estimate for the following year on upcoming professional fees. This information is provided in the form of the OPG105 form that is submitted alongside the deputy report (OPG102) on an annual basis. This is something that deputies have been getting to grips with over the past few years.
The OPG105 consists of two halves; the first being details of the costs that were claimed for the previous year, and the second half relating to the estimated costs for the upcoming period.
The first half of the OGP105 requires some basic information surrounding the matter and details of any interim (or quarterly) payments that were taken over the preceding period.
When completing the second half, the court expects the deputy to break down their estimated costs for the upcoming period into the four following categories:
As stated in PD19B, the only costs to which a deputy is entitled are those that are reasonable and proportionate. Proportionality takes into account the value of the protected party’s (P's) estate, the volume of work done and ensure any work to be carried out in done by a suitable fee earner at the appropriate level.
In light of this, there has been increasing pressure from the court to hold the deputy accountable to demonstrate they are acting accordingly and are carefully considering P's best interests. This is particularly important in cases where P's assets are being significantly or rapidly depleted.
Section 8.57 of the Code states that ‘If deputies are being paid for their services, they are expected to demonstrate a higher degree of care or skill when carrying out their duties.’
This has been the reasoning behind the introduction of the OPG105 and has led to the increased responsibility of the deputy to consider the amount of involvement they expect to have in P's affairs during the upcoming billing period. The deputy is to consider how much the proposed work is likely to cost P's estate.
Alongside this, the deputy is expected to carefully consider if it remains in P's best interests to continue acting in their role as deputy. There is an onus on the deputy to follow the published guidance and explain the reasoning behind their actions and demonstrate how decisions have been made in P's best interests.
The completion and submission of the OPG105 has been designed in such a way that it should not require any further information gathering activity that is not immediately available. The published SD9 has stated that the completion of the form should take no longer than 30 minutes and should not add a further significant cost burden to P.
If the costs that are being claimed in the OPG105 are exceeded in the period to which it relates by more than 20% then the deputy is expected to justify this additional time. This is an area in which your costs draftsman can provide bespoke advice and can draft the narrative of the bill to justify why the estimate has been exceeded. This justification can be used in the first half of the following year’s OPG105 in the section relating to exceeded estimates.
Another top tip we would suggest is that when completing your estimate, on page 6 at paragraph 12, there is space to explain the reasoning behind your estimate. We would strongly suggest completing as much information as possible here, based on your knowledge of your case at the time. For example, you could include a number of bullet points relating to the issues that will need to be addressed over the forthcoming year. This will assist when reviewing the costs at the conclusion of the billing period as your costs draftsman will be able to identify additional, unforeseen areas of work that have arisen during the course of the year and explain to the court why an estimate may have been exceeded by more than 20%.
Having meticulously reviewed your file in order to draft a detailed bill of costs, your costs draftsman is often able to pick out key areas where work has been carried out that could not be foreseen at the outset of the deputyship year and therefore was not accounted for. This could be down to areas such as complex changes in P's care package due to health issues or even the purchase of a new property that P has not previously expressed an interest in. Your costs draftsman will be able to liaise with you in this regard in order to ensure that a full picture is painted to the court as to why further costs have been incurred.
If, during a year of general management, it has become apparent that you are likely to exceed the estimate that was initially provided, your best course of action would be to notify the OPG at the earliest instance. This ensures that it is made clear that in your role as deputy you are aware of a significant change of circumstance and associated increase in the costs being incurred, and you are taking measures to ensure this is closely monitored.
Another area in which your cost draftsman should be able to help you ensure that your OPG105 is accurate is following the drafting of the bill for the previous year of general management. They should be able to use their cost drafting software to breakdown how the costs being claimed for the previous year arose into the four categories set for estimating the upcoming year. If you are made aware that a specific matter has an unusually high level of contact with other parties, or work on forms or other documents, you can account for this work going forward and can ensure that your estimate is weighted correctly across the four aforementioned categories.
Whilst it can sometimes seem daunting to predict what is likely to occur in the future, rest assured that there are measures in place to make amendments to the initial estimate that was provided and they are far from being set in stone. At any step along the way your costs draftsman will be able to provide help and advice in order to ensure that this tricky little form is completed comprehensively and accurately.
Court of Protection Costs Expert, A&M Bacon
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