Terms of Business
Information for Clients and Terms of Business
We recognise the difficulties that some of our clients may have in commenting on this and therefore will write to our client’s families and those supporting the person in these discussions. Further we cannot proceed without leave of the Court of Protection. The Court of Protection refer to persons subject to an application for a Deputy Order as ‘Patients’ but we prefer the term ‘client’ and so refer to them as such in this document.
All we do is confidential to the client, but we take the view that we can share information relevant to a client to those who have the client’s best interests at heart, which is the family and the support team.
The purpose of this document is to set out in sufficient detail the business arrangements that will exist between us, the standard of work and conduct you can expect from us and some of the legal and professional obligations we are under when carrying out your instructions. The Professional Deputy Service (‘PDS’) is a trade name of NCA. NCA is authorised & regulated by the Solicitors Regulatory Authority; SRA number 121041. Our office telephone number is 01473 736 296 and e-mail is Admin@ThePDS.net. Not all of this can be put into a single document, so we set out below what we think you need to know at this stage, and what we need to agree with you.
- When you instruct us, you or those helping you will be entering into a contract in which you will have authorised us to take the steps we consider appropriate to represent you, or carry out your instructions, including incurring reasonable expenses on your behalf and to pay our fees as set out below. These provisions will be set out in a Client Care letter which we will send you on receiving your instructions.
- If you have already asked us to start work on your behalf, e.g. by giving you initial advice or by acting in an emergency, we will have been doing so on the understanding that, unless otherwise agreed, the terms as set out here, are to apply from the start.
- These Terms of Business may be supplemented or amended by a relevant Client Care Letter, and apply to each matter we work on for you.
Responsibility for your work
4. We will let you know as soon as is practicable which member of the firm is to be responsible for your work and the basis on which fees will be charged.
Compliance before we act
5. We are subject to the current Money Laundering Regulations but, for most types of work carried out by the PDS, do not have to establish a client’s identity and address. Any ID evidence held on file may be made available to third parties instructed on your behalf, if they must also comply with the Money Laundering Regulations.
How we carry out your instructions
6. Where appropriate, we will agree with you, your support team and your family a plan for our work. We will keep you sufficiently informed of progress to allow you to make informed decisions as required wherever possible.
7. We will agree a pattern of billing, which may include interim billing to give you a more accurate idea of what our work is costing you, and to enable us to produce realistic estimates of the cost of completing the matter in hand.
Where a client is on means assessed benefits, we will charge as follows:-
- Category 1: Work up to and including the date upon which the court makes an order appointing a deputy for property and affairs £500 plus VAT plus disbursements, including £250 initial financial assessment fee, plus medical assessment fee, (between £50-£250), plus court fee (£400 where charged).
- Category 2: Annual management fee for acting as deputy payable on the anniversary of the order appointing a deputy £650 plus VAT.
- Category 3: Where applicable, an annual fee for managing the person’s tenancy and accommodation of £65 plus VAT.
- Category 4: Where applicable an annual fee for managing any direct payments received from the local authority of not less than £110 in addition to any other annual management charges plus VAT.
to be charged quarterly in advance and paid by monthly standing order.
- Additional standard fees allowed by the Court of Protection as set out in the Order of the Court of 24th November 2014, a copy of which is attached.
- Where we are asked to act for a client before the order is made, our charges will be levied on an hourly rate, which are set at the standard minimum legal aid rate of £50 per hour. Disbursements include GP fees and court fees
8. Where a client is not on means assessed benefits, the Court of Protection will usually make an order for standard costs to apply. This allows for a charge of £950 + vat for a & b above, £1,675 + vat for the first year of acting, and £1,320 + vat thereafter.
The standard order allows for an assessment of costs to be made and we reserve the right in exceptional circumstances to seek assessment of our costs, in which case the agreed rate shall be that which the court considers fit and proper.
9. Where a client has died, the Deputyship is automatically terminated. Provided the estate is small, and all parties agree and are willing to sign an indemnity form, the estate can be dealt with informally. In these circumstances, we will charge an hourly rate fixed by the Court of up to £250 per hour. In addition, at our discretion, an additional fee of 1% of the estate may be charged depending on the size and/or complexity of the estate, together with VAT and disbursements.
We expect our fees and disbursements to be paid as they arise. If there is any difficulty with this, we can, at our discretion, agree to defer payments over a period of time. If a person is on means assessed benefits without significant savings, we may agree to an enhanced standing order per month.
Disability Related Expenses
10. Local Authorities are able to ask a person they provide care for, to contribute towards the cost of that care. Where people are in receipt of the care component of Disability Living Allowance, or Personal Independence Payments, local authorities can ask that some or all of this is paid to them as a contribution towards the persons care costs. Some County Councils presently allow each person the first £25 of the care component of the DLA care and then, unless the person has additional Disability Related Expenses ( DRE), they will ask for the remainder of the person’s DLA to be paid to them as a contribution towards the cost of care. The PDS charges are accepted as DRE and therefore can be offset against the amount otherwise. The effect therefore, is that the person we are acting for is no worse off than if they didn’t pay us to manage their finances. The position regarding DRE and claw back of expenses is complex and there may be additional circumstances, eg, additional capital, which means the DRE are not effective. This can be discussed and advised upon in regard to individual circumstances.
Other legal matters
11. We will make every effort to meet any deadlines we agree with you for the performance of any work but, unless we agree otherwise in writing in relation to any time, date or period for delivery or performance by us, time shall not be of the essence. Holding documents for you, or having knowledge of your circumstances, will not constitute a retainer to advise you on changes or prospective changes in the law, or how the law applies, or may apply, in your circumstances when it changes. We may ask you to read these Terms and Conditions, sign a copy of the covering letter sent to you with these Terms confirming acceptance and return it to us. If you do not sign and return the letter but do not cancel the instructions these Terms and Conditions will deem to have been accepted by you so far as your capacity allows. We are subject to the Proceeds of Crime Act 2002 and may have reporting obligations which override our professional duties to you. Similarly, the Solicitors Regulation Authority and HM Revenue & Customs have the power to inspect our books and client files. Accreditation for professional standards includes random inspections of our files. We may also sub-contract elements of your work (e.g. photocopying of documents, typing), subject to a confidentiality obligation to us by the sub-contractor.
If you are not a personal client or a Trustee of a private trust, we shall also be permitted, unless you instruct us to the contrary, to disclose that we have acted for you when providing information about our practice or offering our services to others.
Unless you instruct us otherwise we may communicate with you by post, telephone, fax and email. As to emails, please read the paragraphs headed ‘Use of Email’.
Use of Email
All of our staff have access to email and may, unless you instruct us to the contrary, send information by email.
Use of internet email carries certain risks, confidentiality may be breached, messages may be lost or delayed, or may not be read, and viruses may be transferred through the use of email. Whilst we will use our best endeavours to ensure this doesn’t take place, we cannot accept responsibility for loss which you suffer as a result of the use of internet email for communications between us or between NCA and third parties. Inherent in the nature of emails is the possibility of impersonation. If in any doubt as to whether an email purporting to come from us is genuine, please contact the person who is named as the sender to verify authenticity.
We suggest that, when sending a time-critical email to us, you telephone to ensure the intended recipient is aware that a message has been sent.
Unless you request otherwise, we will not be required to post to you confirmatory hard copies of emails or attachments to emails.
Custody of papers and other items
We will scan all documents and any items which you deposit with us for safe keeping and then return to you. Subject to any restriction imposed by law, we do not accept liability for the loss of, or for damage to, items held in our custody, or any further liability which might arise as a consequence of an item being lost or damaged. For direct details of the insurance we carry please write to Neil Cawthorn, at NCA,The Archdeacon’s House, Northgate Street, Ipswich Suffolk.
All correspondence and working papers (including advice by Counsel and others), other than documents specifically deposited with us for safe- keeping, may be stored electronically or in paper form and destroyed after the appropriate period.
Holding money for you
We will hold any money we receive from you for use on your behalf in a separate Client bank account which will be subject to the strict provisions of the Solicitors Accounts Rules.
In some instances we are required to settle outstanding fees out of money held for you.
There may be an administration charge for large numbers of transactions.
We will pay you interest as credited to your account by our bankers on funds deposited with us. That interest will be credited to your account quarterly. The amount of interest payable will be dependent upon prevailing base rate levels which may fluctuate from time to time. Interest (other than “de minimis” amounts as above) will be paid with or without deduction of tax according to HM Revenue & Customs requirements. We will tell you whether the interest you receive is gross or net of tax. It will be our responsibility to deal with any tax liability and to pay any tax payable. Investment and Insurance advice
Sometimes work involves investments. We are not regulated by the Financial Services Authority, who can be contacted at 25 The North Colonnade, Canary Wharf, London E14 5HS for advice in this regard.
Out of pocket expenses
We will normally discharge all usual small out of pocket expenses for you as they occur (e.g. fares and such fees) and recover them from you when we send you a bill. We will, however, need to be put in funds in advance to cover any more substantial expenditure such as the advice of Counsel, Accountants, Actuaries, Official Registration and Court fees prior to their being incurred unless the expenditure is covered by Legal Aid. We may ask you to lodge a sum of money with us on account of such disbursements or on account of costs generally.
Our fees, including our hourly rates, are quoted exclusive of VAT.
Our registered VAT Number is: 111 8073 51.
Varying these terms and other changes
We reserve the right to supplement or vary these terms of business at the outset in correspondence with you or subsequently by agreement with you. You should also be aware other changes to our relationship may occur by law, for example, changes to our rules of professional conduct or statutory changes of which we have no control.
12. We want our work to be cost effective for you, and our advice will usually be given with that in mind. If you, your family or support team wish us to pursue a course contrary to our advice, as a general rule we will seek the Court’s approval to cease acting.
The Law of England and Wales will govern our professional and contractual relationship with you notwithstanding you may be based, or our services provided to you, in Scotland, Northern Ireland or elsewhere. These terms and conditions are available in English and French.
Feedback and Complaints Procedure
There is always room for improvement. We encourage suggestions or comments from you in helping to achieve this. If you would like to discuss ways in which our services could be improved, or if you are dissatisfied with any aspect of the service you have had from us, including issues relating to our bills, please contact Neil Cawthorn who has responsibility for Client Care.
If you have a complaint to make, he will attempt to resolve it, using the firm’s internal complaints procedure.
If you are not satisfied with our handling of your complaint, you can ask the Legal Services Ombudsman at Legal Services Ombudsman, 3rd Floor, Sunlight House, Quay Street, Manchester M3 3JZ or email: Iso@olso.gsi.gov.uk to consider the issues.
We are regulated by the Solicitors Regulation Authority and our firm number is SRA 559290.
13. We are bound by professional confidentiality rules in regard to your work generally, but when dealing with clients with special needs, we take the view that friends, family and support workers/carers can best help our client if they are aware of their financial position. If you do not want us to disclose any information or documents to another person (this includes any lawfully appointed attorney) we may require your written instructions to that effect.
Conflicts of Interest
14 If it seems that accepting your instructions may give rise to a conflict of interest with another client, it may not be possible for us to act for you. In that event we will seek to discuss the options with you, &/or your advocate, your support team and/or your family. For example, there can be cases where we may act for clients with similar interests or concerns to yours or who otherwise may have provided us with information of interest to you. In such event, you agree that we shall have no obligation to disclose to you or to use for your benefit any information in our possession from time to time in respect of which we owe a duty of confidentiality to another person.
15 We are obliged to report to the Court of Protection (CoP) and Office of the Public Guardian (OPG) and to supply them with information as requested, which may be relevant to you. We are also subject to an audit by our accountants acting in accordance with standing instructions from the SRA. We may “process your personal data” (defined by the Data Protection Act 1998 (the Act)) for the following purposes:
• Verification of your identity or of office holders of your organisation;
• The provision of Legal, Financial, Investment, Public Affairs, Media and Consultancy Services;
• The administration of files and records;
• Trust Administration;
• Transfers of data between other professionals and advisers notified to us by you;
• The marketing and promotion of our services; and
• Legal Compliance.
We may “process your sensitive personal data” (defined by the Act) for the same purposes. If we process your sensitive personal data for other purposes, we will only do so to the extent permitted by law. We will process your personal data when a condition set out in the Act applies. This will normally be because of the Contract between us. This does not mean that we require your consent to process your personal data for the provision of services to you and we may continue to process your personal data following the end of our retainer when legally permitted to do so. A more detailed list of the purposes for which we may process personal data can be obtained from the Information Commissioner, Wycliffe House, Water Lane, Wilmslow, SK9 5AF or from the web site at www.informationcommissioner.gov.uk. We will use your personal information to provide you with our services and to inform you of relevant news (such as firm-related announcements and forthcoming events) and legal developments. If you do not wish us to process your personal data for marketing purposes please write to our Marketing Manager, at NCA Legal, PO Box 223, Woodbridge PO, Suffolk IP12 1WY.
Scope of liability
16. Our advice is particular to your individual circumstances. We do not accept liability in regard to any person or organisation to whom our advice is not addressed, except where its very nature raises a legal Duty of Care in favour of a third party. The Provisions of the Contracts (Rights of Third Parties) Act 1999 are to that extent excluded. The scope of our work will not include advising on the business implications of any matter or on financial, accounting or actuarial issues, the adequacy of any insurance arrangements or the value or physical condition of any asset. We insure against the risk of being unintentionally negligent, as well as paying a bond when appointed Deputy. Our insurance is arranged by Aon UK Ltd. If you require information about this insurance and the level of cover, please contact Neil Cawthorn at NCA, The Archdeacon’s House, Northgate Street, Ipswich, Suffolk IP1 3BX. The liability of NCA and any Consultant, and other agents of NCA (and any service company owned or controlled by or on behalf of NCA) in any circumstances whatsoever, whether in contract, tort, under statute or otherwise, and howsoever caused (including but not limited to our negligence or non-performance), for loss or damage arising from or in connection with the services provided shall be limited to £2,000,000 except where the rule of law overrides this term. Please note that where we recognise more than one person as our Client in relation to a single matter then each agrees, (a) the limit of liability of £2,000,000 will be divided between them; (b) the Clients are responsible for agreeing the division of the £2,000,000 limit of liability between them; (c) the Clients are under no obligation to inform NCA of the division; (d) if, for whatever reason, no such division is agreed between the Clients then none of them shall dispute the validity or enforceability of the limit of liability on the ground that no such division was agreed between them.
If anything under this heading is not acceptable to you, please tell us without delay. We will use reasonable skill and care in the provision of our work, to improve your life, your property and your financial position. We will seek help with this from your family, friends and support team, but it remains the case that you are our client, your interests are paramount, and irrespective of the terms of any court order, you retain the certain rights which we will seek to uphold and support.