The Court of Protection and Adaptation of Buildings

18th February 2019

When a person lacks the mental capacity to make important decisions, the Court of Protection can step in and appoint a “Deputy”, to take decisions on their behalf. A Deputy can be a friend, family member or appropriate professional, and often may be a lawyer. The Court tends to prefer that professional Deputies get involved when there are decisions to be made about large sums of money. But there could be a mixture of Deputies, for example, one lay person or family member appointed jointly with an independent professional.

A Deputy appointed by the Court of Protection may have a range of responsibilities. Deputies may deal with property and financial affairs, perhaps where building work or the adaptation of the family home is required, to meet the needs of the protected person.

In any building project, Deputies will face several practical issues.  Here are some things to consider.

Allow plenty of time

Building projects often take longer than anticipated.  Even the best builder may encounter problems with labour or may have to deal with something unexpected on site. Specialist materials may need to be sourced for the project, and not all builders may be familiar with the adaptations required.

Delays may adversely affect the care of someone who needs assistance with everyday living, so allow plenty of time for the building works to be designed and then built. Plan what would happen if the works were to be delayed. Agree a completion date and the level of liquidated damages should there be any delays.

Consider costs and plan cash flow at the start of the project

As a Deputy you will have duties to the protected person and also to the Court. You need to be able to account for all of the money spent and the decisions made throughout the building project.

Consequently the contracts set up for building projects may need to incorporate a higher degree of reporting and recording of information, than might be expected for an equivalent “ordinary” building project. So make sure adequate provision is made in consultant appointments and the building contract for supervision, and in the budget for reporting costs.

Be clear about what is required and the design of the Works

Deputies should establish, at the earliest opportunity, whether planning permission may be required. Councils sometimes offer free drop-in advice, and will advise about any special restrictions applicable to the project.

Consider appointing architects or building surveyors to make the planning application for you. It may be money well spent. If you don’t know or can’t provide exactly what is required, get professional help. Make sure that the professional is appointed under a written contact of appointment, so that everyone is clear about the scope and cost of services to be provided.

Write a detailed description of the work to be done. The scope of the works needs to be clear to any consultant appointed and to the builder. Pictures and plans can help with this. Your builder should have practical experience that may improve the design. Encourage your builder to work with your consultant and / or you to make the design more appropriate for the protected person’s individual requirements.

The clearer you are when briefing your consultant or describing the project to your builder, the more likely you are to get the design you want and an accurate quote for the work. Remember to ask what is not included in your quote as well as what is included – you may need to obtain the permission of the Court to pay for anything not covered by your quote, or otherwise resort to additional private funding for anything the Court has not approved.

Changing your design may change your project cost and timings. As much as you will want the works to get underway promptly, it is better to invest time early on in the life of the project.  Changes made when your architect’s designs are well advanced, or after you have a contract with a builder, could be expensive. Changes to design and the responsibility for delay and additional cost are common sources of disputes. Your architect and builder can provide a timetable (“programme”) of the sequence of the works, and key milestones.

As much of the detailed design as possible should be completed in advance of the start of the works. But if that doesn’t happen, at least agree with your builder when decisions have to be made about, for example, bathroom and kitchen fittings, or particular windows or doors you wish to have installed.  And do bear in mind the time it may take for such things to be delivered and the effect on the programme.

Find out what you should pay a contractor for the work

You may need to demonstrate to the Court that the contractor’s work is value for money. So get written quotes from at least three reputable builders. (Avoid estimates, and instead seek a fixed price quote). For significant work taking more than a few days, also request a breakdown of the cost of labour and the cost of the materials.

Agreed daily rates of pay might be suitable for smaller works, but in that case agree also the number of days the job is likely to take, and maybe agree a cap on the price you would pay if the work takes longer than expected.  Otherwise the incentive is there for the builder to string the work out.

For larger projects, consider appointing an architect or quantity surveyor to review quotations.

Choose a recommended builder – what are their qualifications? Do they have current insurance?

Ask to speak to recent clients for whom your builder has worked. Ask also to visit recently completed projects. Were there any problems on the build? If so, how were they dealt with? Were the builders helpful and professional? How easy were they to deal with and contact? A good builder should have plenty of client testimonials for you to check.

If necessary, you could contact a trade association to see what qualifications are relevant to the work you are having done, and check that your builder is qualified to carry out the required work.

Your builder’s insurance should include cover for Contractor’s All Risk, Employer’s Liability, Public/Product/Pollution Liability and (where your builder is designing) Professional Indemnity insurance.  Your builder should provide evidence of insurance. Your own home insurer may be able to advise you of the appropriate levels of insurance that your builder should have. If not ask your architect or building surveyor.  Anyway you should check your own home insurance and let your own insurer know significant work is being done to your property.

Agree a written contract

You and the builder should sign a contract. Contracts for significant works may be made by ‘deed’ – giving you a longer period of reassurance regarding the workmanship. The contract should at least cover the scope of works to be performed, a clear price and when payments are to be made, and start and completion dates, or at least the proposed duration of the work. Consider using one of the standard forms of contract.  One of the suite of “JCT contracts” should suit most projects. JCT contracts are commonly used and understood by most builders. Particularly if you use a standard form of contract for works to your own home, get advice about the payment terms and dispute resolution provisions. If possible, in projects to your own home, avoid adjudication or at least get advice about that before agreeing the contact.

A good builder won’t be short of ‘easier’ jobs to choose from, so don’t expect them to enter into lengthy negotiations resulting in a 50-page tome! A properly worded contract won’t necessarily ensure that your project runs smoothly. Good design, clear project scope and sensible project management may be more important.

Supervision of the Works

Consider the pros and cons of appointing a ‘project manager’ and a clerk of works. For larger projects, you may wish to employ an experienced professional to check the contractor’s work.

If an architect is used to design the building works, she may also assume much of the contract administrative burden on the project. An architect or building surveyor employed to project manage, should help you avoid potential pitfalls. The financial benefits of having a project manager might well outweigh the costs of their appointment.

Trying to co-ordinate a building project can be a stressful, unhappy experience for the inexperienced.

If you do wish to manage the building project yourself, rather than employing a project manager, recognise your own limitations.  If you get stuck, get advice.

The protected person may or may not have capacity to be involved in making decisions about the design of the works decisions.  However, bear in mind that an assessment of person’s capabilities must be carried out every time a decision needs to be made. The protected person may have capacity to make one decision, but not others. Even so, where the protected person takes an avid interest in the progress of the building project an independent project manager can be very useful as an intermediary in discussions.

Collect your certificates!

You should receive throughout your project various important documents: planning permission, building control approval, fire safety certificates, gas and electrical installation certificates, product guarantees and warranties to name a few. Don’t forget to collect these promptly and keep them safe. You’ll need them when you come to sell your property.

Finally, this note is no more than a discussion in general terms of some of the issues you might encounter as a Deputy, and there is no substitute for proper legal and technical advice.  If you would like legal advice before, during or after planning your building project, please contact Edward McMullen, David Evans or Rebecca Munday from our Construction Team.

This article has been co-written by Edward McMullen, David Evans and Rebecca Munday.

This article was first published 22 October 2019 and reviewed on 18 February 2021.

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