Various Incapacitated Persons, Re (Appointment of Trust Corporations As Deputies) [2018] EWCOP 3 (25/01/18)

This is a Judgment from HHJ Hilder concerning what information is required for the Court to be satisfied that a Trust Corporation is a fit and proper legal person to hold the appointment of deputy for an incapacitated person.

The case involved 36 applicants covering 11 different trust corporations, all of which are affiliated to solicitor practices.  (The judgment is also applicable to other types of regulated trust corporations (such as charities, banks and other financial institutions), as well as unregulated trust corporations).

The Judgment identifies that there is presently no system in place as between the Court, the Office of the Public Guardian and the Ministry of Justice’s approved bond supplier on which the Court can rely as to the suitability of a trust corporation for appointment as deputy prior to making such appointment. A trust corporation can apply to be on the PG’s panel of deputies, but there is no ‘panel’ of trust corporations which have demonstrated compliance with legal requirements to act. Information necessary to satisfy the Court as to suitability must therefore be ’built into’ the application process itself.

The Judgment goes on to review the relevant law concerning the appointment of deputies and changes in the commercial legal landscape since the introduction of the MCA 2005 are noted.

In the judgment, Her Honour Judge Hilder has detailed the information required by the Court to be satisfied that a trust corporation is a proper legal person to hold the appointment of deputy. The judgment also refers to how the level of security bond should be set.

The relevant information in the judgment is a) whether the trust corporation can lawfully act as such b) whether the internal management, supervision and controls of the trust corporation are appropriate c) external regulation other than by the Public Guardian, and d) the amount of protected persons’ assets and funds held; the level of insurance cover which the trust corporation has.

HHJ Hilder’s conclusions are summarised in Schedule 2 of the Judgment as follows:

Information/undertakings to be provided by an authorised person on behalf of a trust corporation seeking to be appointed as property and affairs deputy

  1. The proposed deputy (the trust corporation) is a trust corporation within the meaning of section 64(1) of the Mental Capacity Act 2005 and can lawfully act as such; and 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 SRA;
    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 paragrapgh 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.

HHJ Hilder recommends that the current COP4 Declaration form be amended to incorporate these requirements. Until that can be achieved, a trust corporation seeking appointment as a property and affairs deputy should file with its application the current standard COP4 form with an additional page attached to address schedule 2 of the judgment.

The full judgment can be read here.

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