Case Summary: Various Incapacitated Persons, Re (Appointment of Trust Corporations As Deputies) [2018] EWCOP 3

Case

Various Incapacitated Persons, Re (Appointment of Trust Corporations As Deputies) [2018] EWCOP 3

Relevant Topics

• Court of Protection
• Appointment of Deputies
• Property and Affairs
• Trust Corporations

Practical Impact

Where a Trust Corporation seeks to be appointed as a property and affairs deputy it is required to give an undertaking that it will comply with the criteria set out below. The undertakings should be submitted as an annexe to the COP4 (Deputy's Declaration).

Care co-ordinators and providers supporting service users where an appointment of a deputy for property and affairs should ensure that any Trust Corporation looking to be appointed provides this information.

In practice, only Trust Corporations made up of solicitors can act as a deputy for property and affairs.

Summary

Where a Trust Corporation makes an application to be appointed as a property and affairs deputy, it must include the following information alongside the COP4, or shortly after appointment:

1. An undertaking that the proposed deputy (the Trust Corporation) is a Trust Corporation within the meaning of section 64(1) of the Mental Capacity Act 2005 (which means that the Public Trustee or a corporation either appointed by the court in any particular case to be a trustee, or entitled by rules made under subsection (3) of section four of the Public Trustee Act, 1906, to act as custodian trustee) and can lawfully act as such; and that the Trust Corporation will inform the Public Guardian immediately if that ceases to be the case.

2. The Trust Corporation will comply with the Public Guardian’s published standards for professional deputies.

3. EITHER

(i) The Trust Corporation is authorised by the Solicitor's Regulation Authority;

    OR

(ii) all the directors of the Trust Corporation are solicitors and it employs no one (save to the extent that it employs a company secretary); and

(iii) the Trust Corporation will retain its associated legal practice to carry out all practical work in relation to the management of the incapacitated person’s property and affairs; and

(iv) the Trust Corporation is covered by the professional indemnity insurance policy of its associated authorised legal practice on the same terms as that practice;

4. The Trust Corporation will notify the Public Guardian immediately if there is any change to any of the matters set out in paragraph 3 above.

5. The Trust Corporation undertakes that it (or where relevant its associated authorised legal practice) will maintain insurance cover that:

(i) covers the work of the Trust Corporation; and

(ii) is compliant with SRA Minimum Terms and Conditions.

6. The Trust Corporation will lodge a copy of the insurance policy referred to in paragraph 5 above with the Public Guardian on appointment and will inform the Public Guardian immediately if there is any reduction in the terms or level of the insurance cover. 

A Trust Corporation could apply to become a deputy; however there was no system in place for the court to be satisfied that the corporation was suitable to be appointed as a deputy. In this case, the court considered what information a Trust Corporation should provide to show it was fit and proper to be appointed as a property and affairs deputy.

Trust Corporations applying to be financial and property affairs deputies must comply with the requirements set out in this case for the court to be satisfied they are fit and proper to be appointed.