Post-Death Costs in the Court of Protection

Following consultation with the Court of Protection, the correct way to deal with costs after the death of P is confirmed as follows.

Costs “up to the date of P’s death” are covered by the deputyship order – the relevant COP Rules and precedents on this are clear and no further order is needed for any costs incurred whilst P is alive and lacks capacity, to be assessed.

Since the COP’s substantive jurisdiction ends with the death of P, the COP has no jurisdiction to make orders about costs incurred after death of P. COP Rule 19.11 is expressly limited to costs incurred during the lifetime of P for this very reason.

Costs Officers and Costs Judges assessing any COP Bill that contains any costs incurred post-death, will strike through them and annotate the Bill with the following wording:

‘Costs post-death are not covered by the existing deputyship order. The COP’s substantive jurisdiction ends with the death of P. As the COP has no jurisdiction to make orders about costs incurred after the death of P, the SCCO therefore has no jurisdiction to assess these costs under the COP Rules 2017.’

Deputies do not, even for costs incurred during P’s lifetime, need to obtain a further Order once P has died before they can seek SCCO assessment. This is additional, and unnecessary, work for the deputy and the COP, and the deputy will not be paid for this work.

To the extent that current OPG and SCCO Guidance contradicts the above it will be amended as soon as practicable.

The SCCO is not in a position to issue guidance to practitioners on how to go about recovering costs incurred after P dies

.
If a Bill has already been filed, please notify the SCCO of the date of P’s death as soon as possible by email to SCCO@justice.gov.uk. Where the bill has not already been filed please make sure this information is provided at the beginning of the Bill for assessment.

For the avoidance of doubt all Bills for which a Final Costs Certificate has not been issued at the time of P’s death should be served upon all interested parties following provisional assessment.
Costs Judge James and Costs Judge Whalan
13th May 2024