Re Various Incapacitated Persons
 [2018] WTLR 1511

Analysis

The court was asked to consider the applications, made on behalf of 36 incapacitated persons, to appoint a trust corporation as their property and affairs deputy. There was currently no agreed system through which the court could know that any particular trust corporation was suitable to be appointed as deputy, nor a ‘panel’ of approved trust corporations.

The following questions arose:

1. A. Could a trust corporation lawfully act as a deputy?
2. B. How could a trust corporation satisfy the court that it was appropriate for it to act as deputy?
3. C. How should P’s assets and funds be held?
4. D. What level of insurance should the trust corporation maintain?

In determining these questions, the court asserted that the applicants could be divided into three categories of trust corporation:

1. Category 1: where the trust corporation is itself regulated by the Solicitors Regulation Authority (SRA).
2. Category 2: where the trust corporation is not itself regulated by the SRA, but all of the individuals involved in the trust corporation and the underlying firm are subject to SRA regulation.
3. Category 3: where neither the trust corporation nor all of the individuals involved are subject to SRA regulation (this includes trust corporations which may be subject to other regulatory bodies such as the Charities Commission or the Financial Conduct Authority).

Held:

1. 1) A trust corporation could lawfully act as a deputy, so long as it met the four conditions set out at r30 of the Public Trustees Rules 1912. The trust corporation should make a declaration that it is lawfully entitled to act as a deputy (verified by a declaration of truth) and give an undertaking to inform the office of the Public Guardian if this changes at any time. The Court of Protection can direct a report under s49 MCA 2005 if necessary, and will assess the appropriateness of their appointment in the same way as it would any applicant.
2. 2) As to (B), it was important to consider both the internal management of the trust corporation and its regulation by any outside agency. The latter consideration would help assure the court that the trust corporation would act in P’s best interests, as otherwise it could face regulatory action.
3. 3) It was not for the court to impose standard practices for internal management of trust corporations; it was sufficient for the court to require an undertaking from an officer of the trust corporation that the corporation will comply with the Public Guardian’s published standards for professional deputies.
4. 4) Category 1 and 2 trust corporations could show sufficient regulatory oversight to satisfy the court that they are suitable to be appointed as deputies. Category 3 trust corporations would be considered on an applicant by applicant basis. Applications by non-regulated trust corporations are likely to be considered with caution.
5. 5) As to (C), the court considered the holding of P’s assets to be part of its assessment as to the suitability of the internal management structures and external regulation.
6. 6) As to (D), the trust corporation should maintain insurance cover that complies with the SRA’s minimum terms and conditions, and should notify the Public Guardian immediately if the terms or level of insurance cover is reduced. The trust corporation must also lodge a copy of the insurance policy with the Public Guardian upon appointment.
7. 7) When applying to be appointed as a deputy, the trust corporation should complete the standard COP4, along with giving the undertakings set out in Schedule 2 of this judgment.

JUDGMENT HHJ HILDER: The scope of proceedings [1] This judgment concerns applications in respect of 36 different persons, listed in schedule 1 attached. Each application seeks the appointment as property and affairs deputy of a trust corporation. The applications have been made by eleven different trust corporations, as identified in schedule 1. The court’s concern …

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 [2018] WTLR 1511"