Author: Tanya Foran

Can a Trust Corporation be appointed as a Deputy?

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In the Matter of AB [2026] EWCOP 11 (T2) (5 February 2026) Her Honour Judge Hilder considered various factors when deciding if a Trust Corporation could be appointed as a deputy.

Key Facts

 The matter concerned an incapacitated adult (“AB”) and issues relating to the appointment and responsibilities of a deputy. In this case, a trust corporation made an application to be appointed as AB’s deputy. The trust corporation, whilst not directly regulated, had employees with day-to-day management of the matter, who were regulated by the SRA.

In this case, the Court was required to address practice and procedure in the context of deputies who have been appointed to manage the finances and property of someone who lacks capacity under the Mental Capacity Act 2005.

A major practical issue in this case was whether the trust corporation deputy was covered by appropriate professional indemnity insurance. This is an important protection for both the deputy and AB in the event of any claims that may arise from deputyship decisions.

The judgment illustrates how the Court of Protection will scrutinise the credentials and safeguards associated with professional deputies, especially when the deputyship is not a family member or layperson. In this matter, the application was for the appointment of a trust corporation as opposed to an individual and whilst the day to day file handler was a solicitor, the trust was not a law firm and was not therefore regulated by the SRA.

Previous Case Law

In the judgement from Various Incapacitated Persons and the Appointment of Trust Corporations as Deputies [2018] EWCOP 3, it was provided that two types of trust corporation were acceptable either where the trust corporation is itself authorised by the SRA OR where;

a. 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

b. 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

c. the trust corporation is covered by the professional indemnity insurance policy of its associated authorised legal practice on the same terms as that practice

AND that the trust corporation will inform the Public Guardian immediately if any of these things change

with the following undertakings:

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 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.

AB [2026]

In the initial application Enable & Thrive Ltd was unable to comply with undertakings from previous case law, there were failures to notify family members of the application and when family members were notified, they objected to the application. There was also a lack of detail provided to the court in relation to AB’s circumstances.

It was necessary for the court to look at whether other safeguards existed and the court found that the applicant had;

  • A solicitor director regulated by the SRA.
  • Professional indemnity insurance.
  • Staff training.
  • Safeguarding procedures.
  • Annual reporting to the OPG.
  • Requirements for a security bond.

Conclusion

In this matter the third undertaking from Various Incapacitated Persons and the Appointment of Trust Corporations as Deputies [2018] EWCOP 3 could not be satisfied as the trust corporation was not regulated by the SRA and to compensate for this the following was to be complied with:

  1. The corporation confirms it is a Category 3 trust corporation, and names the solicitor‑director(s) regulated by the SRA.
  2. Only the named solicitor‑director(s) may be listed on any client account.
  3. It must notify the Public Guardian of any change to these matters.
  4. It must still comply with the undertakings on insurance found in The First Judgment.

Whilst this could be complied with, a hearing took place and all parties agreed that the trust corporation be discharged and a panel deputy should be appointed in its place.

Legal Significance

The case underscores that corporate deputies must demonstrate appropriate insurance and oversight mechanisms before being appointed or continuing in the role.

It also highlights practical Court of Protection concerns about the capacity of professional deputies to manage complex financial affairs and ensure protection of vulnerable persons’ interests.

It was accepted that the risks to AB included the potential misappropriation of funds, financial mismanagement and a lack of accountability. Her Honour Judge Hilder also noted that “membership of professional associations is not the same as regulation.”

If you have any questions on the information above or have any general queries with regard to seeking costs, please contact me at Tanya.Foran@clarionsolicitors.com

Gifting – New guidance issued by the Office of the Public Guardian

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The Office of the Public Guardian have this month issued updated guidance on gifting for both Deputies and Attorneys on behalf of P.

Both Deputies and Attorneys must follow stricter protocols when giving gifts on behalf of P. The gifts must coincide with past habits and financial means and need to comply with the MCA 2005. Approval must be sought from the Court of Protection when making gifts, with the exception of small customary amounts such as for birthdays, holidays and other similar events.

It is necessary to ensure that when making gifts, the Deputy or Attorney are acting in P’s best interests given their wishes, feelings and financial position. Also, a sufficient paper trail should be kept to explain how the decision was arrived at and what factors were taken into account.

The Deputy or Attorney must consider whether P has:

  • The capacity to understand the decision to make a gift;
  • Whether P is able to take part in the decision making process.

What cannot be given as a gift:

  • A loan
  • Making a large gift
  • Creating a trust over P’s property
  • Living rent free in a property owned by P
  • Selling a property for less than its value or transferring property into another name
  • Changing a Will by a deed of variation
  • Maintaining and support another person
  • Removing cash assets to reduce P’s estate

Exceptions include gifts given to friends and family on customary occasions such as birthdays, weddings and religious celebrations, gifts that were previously given either to a person or charity and must be of reasonable value, taking into account the circumstances and the size of P’s estate.

What is deemed as a reasonable gift?

Various factors must be taken into account including:

  • The impact of the gift on P’s estate;
    • Whether making the gift is in P’s best interests; and
    • The current and future needs of P.

A best interests decision should be made and properly recorded including details of all other issues taken into account. These include P’s previous habits, how the gift may affect an inheritance and the payment of inheritance tax. P’s life expectancy should be considered together with P’s future financial position and the relationship between P and the person receiving the gift also, importantly P’s wishes and feelings, taking into account any previous Wills prepared.

For the full guidance please click on the link giving-gifts-guidance.pdf (publishing.service.gov.uk)

If you have any questions on the information above or have any general queries with regard to seeking costs, please contact me at Tanya.Foran@clarionsolicitors.com.

Manchester University NHS Foundation trust v Y [2023] EWCOP 51

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This case involved capacity and the refusal of treatment. It was necessary for the Court to consider P’s independence and his best interests when making a decision.

Following a long history of schizophrenia, P sustained a severe injury and was reluctant to undergo treatment.

Recently, an application was made by the NHS Trust to assess whether P held the capacity to consent to surgery and if he lacks capacity in this matter, to consider whether the proposed surgery was in his best interests.

Background:

By way of background, P is a 42-year-old male who has been diagnosed with Paranoid Schizophrenia. On 27 October 2023, P was found unresponsive in the community; He had sustained multiple injuries and suffered from a seizure. Following this, the P was admitted to his local emergency department where it was determined that P had fractured his left humeral head and dislocated his left shoulder.

P had recently switched his medication, which was used to manage his schizophrenia, from clozapine to olanzapine, which may have deteriorated his condition. Some of the side effects of olanzapine include depression, unusual behaviour and restlessness; it is suggested that this could explain P’s deviant behaviour, such as hostility towards staff.

Paranoid Schizophrenia gives rise to irrational beliefs and delusions which impact the way in which a person interprets their surroundings. As P was diagnosed with Paranoid Schizophrenia, he experiences delusions, which lead him to believe that surgery was unnecessary as it would not prevent future pain. P also believed that he was unable to lose function in his arm and therefore, treatment was not required.

Legal Background:

Dr F is a consultant liaison psychiatrist who met with P on 9 November 2023 to conduct a capacity assessment. The aim of the capacity assessment was to determine whether P held capacity to consent to surgery.

A variety of concerns were raised by Dr F regarding the treatment of P’s schizophrenia; P had not attended follow-up appointments with his community group and there were concerns that he had not taken his antipsychotic medication. Following P’s admission to hospital, he met with the mental health team who identified that since October 2021, P’s condition had deteriorated severely. It was clear that P was unaware of his diagnosis as he declined medication for his paranoid schizophrenia; P also denied any mental ill-health. Therefore, Dr F concluded that P lacked the capacity to refuse the surgery he required, because of his delusions, he was unable to believe the medical rational.

Mr D, a consultant orthopaedic surgeon, described the surgery as the ‘best treatment’ for P’s consistent shoulder pain. Mr D also determined that P did not hold the capacity to refuse surgery. P’s brother and father supported this conclusion by advising Mr D that if P held capacity, he would want to have the surgery.

As P lacked the capacity to comprehend the surgery he required, he was unable to make a decision within the means of Section 3 of the Mental Capacity Act 2005 and subsequently, was unable to provide his consent, or refusal, to the surgery. He therefore lacked capacity in respect of the relevant matter, the giving of his consent for shoulder surgery. Thereafter, the NHS Trust sought a declaration that it was lawful to complete surgery on P’s shoulder and restore function to his arm.

Conclusion:

The Court of Protection ruled the application in favour of the NHS Trust. Despite all the practicable steps taken to assist P in making a capacitous decision, they were unsuccessful as P was unable to assess the benefits and the risks of the surgery he required.  

Subsequently, an Order dated 14 November 2023 was sought declaring that it was lawful to conduct the surgical procedure because it was within the P’s best interests.

You can find out more about our services here or you can contact the Costs and Litigation Funding team at costs.support@clarionsolicitors.com.

Disbursements & the E-bill

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A disbursement is a payment made on behalf of a client or third party, for which reimbursement is subsequently sought from the client. In COP terms, this means a payment made by the Deputy that needs to be reimbursed by the Protected Party.  

With the new E-Bill, all work now needs to be categorised. This also applies to disbursements. The types of categories in the E-Bill are as follows:  

  • travel expenses 
  • costs draftsman’s fees  
  • counsel’s fees  
  • court fees  
  • bank fees  
  • internal solicitor fees 
  • external solicitor fees 
  • OPG fee  
  • courier fees 
  • land registry fees  
  • expert fees  
  • other  

Many of the items in the list do not need to be assessed and would be better placed in the annual Deputyship report (e.g. court fees) and as such, this has caused some confusion as to what disbursements need to be assessed and what disbursements do not need to be assessed. As a result of the confusion, we obtained guidance from the costs officers.  

According to the Costs Officers, the disbursements that MUST be included in a general management bill for assessment are:  

  • travel expenses  
  • counsel’s fees  
  • bank fees  
  • land registry fees 
  • courier fees  
  • expert fees  

The Costs Officers also advised that internal and external solicitor fees would be dependent on the case and the orders made. Whilst these fees are not usually included in general management files, should this come up on one of your matters and you are unsure, please ask us for further guidance. 

In certain applications (such as Statutory Wills) there will be no Deputyship report where disbursements can be claimed. In these types of bills, ALL disbursements incurred must be claimed within the bill – if not claimed in the bill you will not be able to bill the disbursement to the client. 

For more information, please contact Tanya Foran by email at Tanya.Foran@clarionsolicitors.com. 

Case law surrounding fluctuating capacity – Wrightington, Wigan and Lee Teaching Hospitals NHS Foundation Trust v SM

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Before Mr Justice Cobb on 18 November 2022, in the Royal Courts of Justice the issue of fluctuating capacity was considered in a case involving a minor (aged 16) and the safe delivery of her unborn baby.

The case involved SM who was a looked after 16-year-old who resided in a supported living complex in Wigan. SM received care from a team of support workers. SM had a history of sexual exploitation and suffered from a complex post-traumatic stress disorder. SM had a history of hospital admissions as a result of her mental health and declined medication on the basis that she feared the medication would cause her mental health to deteriorate further.

SM was deemed as a looked-after child within the definition of section 20 of the Children Act 1989. She was in the advanced stages of pregnancy and had resisted the need for a caesarean operation to be performed to ensure the safe delivery of her baby. Her antenatal care had been good and aside from her mental health the pregnancy had been uncomplicated. However, during the pregnancy she had shown signs of concerns and fear of giving birth. Caesarean section had been attempted on three separate occasions together with an attempt at induction, whereby SM had been unable to go through with the procedure due to fear and anxiety.

The applicant, the NHS Trust sought relief from the Court including a declaration that SM lacked capacity to make decisions regarding her obstetric care and treatment; the Court’s authority to proceed with the proposed plan of a caesarean section operation and to deprive SM of her liberty in order to achieve the safe delivery of the baby.

It was held that SM had capacity to conduct the proceedings and the Official Solicitor declined to act as litigation friend. The Official Solicitor also declined to act as an advocate to the Court. SM instructed a firm of Solicitors to represent her in the proceedings.

Mr Justice Cobb reviewed the evidence before him including various reports and oral evidence from the anaesthetist, obstetrician, psychiatrist and social worker.

Reference was made by Mr Cobb to a previous case of GSTT v SLAM and R (2020) where Hayden J held that “The inviolability of a woman’s body is a facet of her fundamental freedom but so too is her right to take decisions relating to her unborn child based on access, at all stages, to the range of options available to her.” It was further held that “the Court is required to step in to protect her, recognising that this will always require a complex, delicate, and sensitive evaluation of a range of her competing rights and interests.”

The Judge also held that the longer the situation went on, the greater the risk of stillbirth and this outcome would have a detrimental effect on SM, in view of her fragile mental health. The NHS Trust had a team of experts on hand to deliver the baby by caesarean section, against SM’s will, subject to the outcome of the hearing.

Mr Cobb said he was satisfied having given thought to all the evidence that it was clear that SM had lost capacity over the preceding days when she had become overwhelmed by anxiety and stress and should the situation arise again, if the welfare of the mother and baby was compromised to find that the caesarean section was necessary then it would be lawful for the hospital to go ahead with the procedure.

The NHS Trust provided details of the three options available which included vaginal birth, caesarean section under local anaesthetic and caesarean section under general anaesthetic. It was held that whilst previous examinations had not pointed out any concerns, in relation to delay, regular monitoring may not show any concerns with the baby and in view of the practical difficulties it was anticipated that some level of restraint may be necessary. It was also considered that SM would not be able to cope with spontaneous labour. Dr PA for the NHS Trust also explained that the chances of SM cooperating were low, and that further induction may cause distress and should not be embarked upon.

SM had submitted prior to the hearing that she wished to be able to deliver her baby with the least intervention and that she wanted to be aware and awake on delivery of the baby. She also maintained that she should be allowed to proceed to full term and would attend at the hospital for daily check ups if that was determined necessary. SM advised that the previous attempt at induction had been uncomfortable and she confirmed that she would be willing to give it a further try as she was now aware of the implications. SM also said that she had felt bullied by the NHS Trust. At the conclusion of the hearing SM agreed to a further attempt at induction failing which a caesarean section procedure would be performed.

Dr ZS concluded that SM had fluctuating capacity and was without capacity when overwhelmed with stress and anxiety.

Mr Cobb gave weight to SM’s wishes and considered that she was more aware of the circumstances and held that an induction should be attempted one further time. He ordered that should she become overwhelmed a caesarean section under general anaesthetic would be in her best interests to safeguard the well-being of SM and her baby.

SM was vaginally induced following the hearing and safely delivered a baby girl the following day.

The full judgement can be found here –

https://www.bailii.org/ew/cases/EWCOP/2022/56.html

For more information, please contact Tanya Foran by email at Tanya.Foran@clarionsolicitors.com

Proportionality

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The SCCO now insist on the inclusion of the details of P’s estate in respect of COP Bills sent for assessment where this information is not readily available within the Bill narrative. This is to ensure that P is not below the hardship threshold or that the Bill drawn up will not take P into hardship and to ensure proportionality in respect of the size of P’s estate and the costs being claimed.

Proportionality concerning the assessment of costs is covered under Part 44.3(5) of the Civil Procedure Rules, which states that costs incurred are proportionate if they bear a relationship to:

  • The sums in issue in the proceedings;
  • The value of any non-monetary relief in issue in the proceedings;
  • The complexity of the litigation;
  • Any additional work generated by the conduct of the paying party;
  • Any wider factors involved in the proceedings, such as reputation of public importance; and
  • Any additional work undertaken or expense incurred due to the vulnerability of a party or any witness.

N.B Each factor should be given equal weighting BUT in practice there is a tendency to give superior weighting to value.

Further under Part 44.4 (1)(a)(i) the Court will have regard to all circumstances in deciding whether costs were proportionately and reasonably incurred or proportionate and reasonable in amount when assessing costs on the standard basis. The Court will also have regard to the amount or value of any money or property involved.

In a recent matter submitted to the SCCO a Costs Officer reduced the profit costs in a Bill of Costs by over 25% on the basis that the costs claimed were disproportionate to the size of P’s estate. It is therefore important to keep proportionality in mind at all times, particularly when submitting Bills for assessment.

The Court of Protection Rules 2007 (Overriding Objective) states that the Court will “deal with the case in ways which are proportionate to the nature, importance and complexity of the issues.”

As set out above there is a tendency by the Court to give superior weighting to value. It is important to consider the following factors:-

  • Settlement awards
  • LA funding
  • Periodic payments
  • Business interests
  • Ongoing litigation
  • Money Trusts
  • Liquid assets
  • Investments
  • Property

The conduct of P or their family may have caused additional work by the Deputy. If this is the case details of this should be included within the Bill narrative. The likely issues that may arise include, extended family involvement, a complex care dynamic, difficult parents of P, frequent requests for funds and a directly employed care team.

Complexity is also a major factor and should also be taken in account. Often the Deputy will need to take the following matters into account and substantial work may be completed in relation to the following areas:-

  1. Complex investments
  2. Extraordinary applications
  3. Business interests
  4. International elements
  5. Money held in Trusts
  6. Specialist care needs
  7. DOLS

Following the Jackson Reforms there is more weight on proportionality, and it is always worthwhile remembering that the burden of proof is on the party seeking costs to resolve any doubt which it may have as to whether costs were reasonable and proportionately incurred or were reasonable and proportionate in amount in favour of the paying party.

Tanya Foran is an Associate in the Costs and Litigation Funding Department at Clarion Solicitors. You can contact Tanya by email at Tanya.Foran@clarionsolicitors.com or the team at costssupport@clarionsolicitors.com.

For COP practitioners, please see update released from the SCCO today in relation to their backlog!

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Notice to customers regarding Court of Protection bills

Please be advised that due to staff shortages on all teams and issues relating to Covid-19, the SCCO is currently dealing with a significant backlog of Court of Protection bills.  As a result of this, waiting times have increased, which has understandably led to an increase in the enquiries regarding progress that we have been receiving by phone and email.

Please be assured that we do understand how frustrating delays can be for our customers and staff are working hard to improve the situation.  However, the need to respond to a high volume of chasing queries is impacting on the time they have to process the backlog, which in turn, has a counter-productive effect on waiting times.

To clarify, our procedures, bills are assessed in order of the date upon which the supporting paperwork was received.  The Costs Officers are currently assessing cases for which the supporting papers arrived around late July.  We usually allow 2 weeks for the assessment of the bill.  Once assessed, it is returned to the Admin Team for despatch.  Unfortunately, there is also a backlog of assessed bills with the Admin Team and they are currently processing bills returned to them by the Costs Officers in the second week of December.

Please note that we have no control over delivery times following despatch. 

In terms of e-filings that have been submitted, but not yet accepted or rejected, we are currently working on filings submitted around mid-December.

In view of the above and in order to maximise the time that is spent working to reduce the backlog, we are politely requesting that at the present time you do not make enquiries about the progress of the following:

  • Any bills for which supporting paperwork was submitted after late July.
  • Any e-filing not yet accepted/rejected that was submitted after mid December.

The dates being worked on will obviously change over time and it is our intention to send out a bi-weekly update so that customers are aware of the approximate time periods involved.  Please be aware that the progress we make very much depends upon the volume and complexity of work received within a particular period, as well as the resources available to us.  Consequently, the speed with which we advance through the dates may not always be consistent.  Please also bear in mind that any information provided regarding individual bills is an estimate and our staff cannot make guarantees as to when a particular case will be dealt with.

Measures are being taken which should hopefully improve the situation in the longer-term, but in the meantime, your assistance in restricting queries to urgent matters would be greatly appreciated and help us to deal with your bills as efficiently as possible.

We do apologise for the delays and thank you for your continued patience during these difficult times.

The Senior Courts Costs Office

07/02/2022

You can find out more about our services here or you can contact the Costs and Litigation Funding team at costs.support@clarionsolicitors.com.

Case law surrounding fluctuating capacity – Liverpool City Council v CMW (2021)

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The issue of fluctuating and issue specific capacity was considered in this recent case.

The matter related to whether a young woman had the capacity to make decisions in specific areas including the conduct of proceedings, the management of her affairs, her care and residence, her contact with others, the use of social media including the internet and whether she could engage in sexual relations.

P was an 18-year-old woman with a troubled background including a recent suicide attempt and had been the subject of a Care Order from 13th May 2008. At the time of the hearing, she resided in supported living accommodation and was supervised by the Local Authority. She was subjected to restrictions as to whom she was able to contact following a Care Order in 2008 and a series of interim COP orders. P was diagnosed with ADHD, foetal alcohol spectrum disorder and specific difficulties relating to cognition and communication.

The Court was provided with two written reports from Dr Angela Rippon, a consultant psychiatrist with considerable experience and expertise and written evidence from Social Services and the Official Solicitor’s representative’s notes of conversations with held with P. The expert considered that P’s expressive language was quite good but her receptive and processing skills were only those of a child aged 7 to 9. It was held that she did not have a learning disability but that she had what Dr Rippon described as a functional disorder.

The Court was satisfied that the medical evidence showed that the functioning of P’s mind was impaired and that she lacked the capacity to conduct proceedings and manage her own affairs as she could not understand the relevant issues that need to be weighed to make decisions in these matters. The Court also found that she lacked the capacity to make decisions relating to her residence, care, and her contact with others because “she seriously overestimates her own ability to keep herself safe and to control her life and seriously underestimates the consequences for her welfare of independence”. The Court also found that she did not understand the support that she needed or why she needed it and was concerned with what would happen if she did not have that support or refused it.

It was also held by the Court that P’s potential capacity would fluctuate depending on the extent to which she was either calm or distressed and this would need to be considered in future years, as there were grounds for improvement. The Court concluded that although potential capacity did fluctuate, even at her calmest, P did not achieve a level of functioning that would amount to having capacity in relation particularly to residence, care and contact but that she had the capacity to deal with social media, the internet, and engage in sexual relations.

A best interests hearing was scheduled by the Court for the areas in which P lacked capacity and authorised the continuation of the Local Authority’s care plan in the interim.

The full judgment can be found here –https://www.bailii.org/ew/cases/EWCOP/2021/50.html

For more information please contact Tanya Foran by email at Tanya.Foran@clarionsolicitors.com.

You can find out more about our services here or you can contact the Costs and Litigation Funding team at costs.support@clarionsolicitors.com.