Tag: #COP

Can a Trust Corporation be appointed as a Deputy?

Tanya ForanLeave a comment

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

EG & Anor v P [2024] EWCOP 80 (T3)

hawamayetLeave a comment

In a recent Judgment handed down by Sir Andrew McFarlane, President of the Family Division, the Court of Protection considered an urgent application brought by Deputies acting for P, who sought a payment of £17,000 from his funds to repay a drug debt to an organised crime group.

Case Summary

The Protected Party (P), now in his 20s, suffered a severe brain injury as a toddler in a road traffic accident and was awarded a substantial compensation fund. Despite cognitive impairments, P lives independently and is not subject to any welfare Orders. He has been deemed to have capacity in some matters, including entering a cohabitation agreement (assessed in 2020). However, his property and affairs remain under Deputyship.

Over a year ago, properties associated with P were raided by police. A significant quantity of Class A and B drugs was seized and P was arrested. His Deputies were aware of the arrest but believed the matter was limited to potential criminal proceedings. The situation escalated when P informed his Deputies that he owed £17,000 to a drug gang. He had reportedly agreed to share in the profits of the drugs seized. Fearing for his safety, P requested a payment from his fund to settle the debt.

The Deputies found themselves in a near-impossible position:

  • If P had capacity, they would be obliged to comply with his request, provided the payment fell within his legal entitlements.
  • If P lacked capacity, they could refuse the request, but the matter would then fall to the Court to consider whether it was in his best interests.
  • Either way, making such a payment risked criminal and professional consequences.

The Deputies obtained Counsel’s advice, which confirmed that making the payment would likely breach the Proceeds of Crime Act 2002, particularly under section 328 (entering into or becoming concerned in arrangements facilitating acquisition, retention or control of criminal property). Even if done with the best of intentions, such a payment would be seen as enabling criminal conduct and could expose the Deputies to liability. The advice obtained from Gregory Treverton-Jones KC confirmed that the Deputies would be in breach of the Solicitors Regulation Authority’s Principles and Code of Conduct if they made the payment.

The Court commissioned an updated, decision-specific capacity assessment which was carried out by Dr Geoff Hill, a consultant clinical neuropsychologist. The key findings included:

  • P understood the nature of the decision but he could not weigh the long-term risks or recall and apply key information (e.g. risk of prosecution, long-term financial harm)
  • His decision-making was driven by immediate emotional relief (reducing stress), not reasoned evaluation.

Dr Hill concluded that P lacked capacity to make this particular decision despite functioning well in other areas of life.

 Ruling

Sir Andrew McFarlane concluded that:

  1. P lacks the mental capacity to decide whether to pay the £17,000 drug debt.
  2. The Court cannot authorise a criminal act, even if it may reduce stress or mitigate a personal risk to P.
  3. The Deputies acted appropriately in seeking Court guidance and the Court expressly refused to dismiss the application, instead issuing a formal refusal to sanction the payment.

Importantly, the Court refused to make a best interests decision because of the binding authority in Secretary of State for Justice v A Local Authority & Ors [2021] EWCA Civ 1527, confirming that the Court of Protection cannot authorise illegal conduct under any circumstances.

Summary

The Court refused to sanction the payment requested for the payment to be made to the drug gang, concluding that doing so would amount to facilitating criminal conduct. This Judgment offers important clarity on the limits of Deputies’ powers and reinforces the fundamental legal principle that the Courts cannot condone or enable criminality, even where the individual involved believes it is in their 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.

MA v A Local Authority & Ors [2024] EWCOP 48 (T2)

hawamayetLeave a comment

This matter concerned a legal Judgment following an appeal by MA, a Protected Party, against decision by District Judge Simpson. The original decision determined that it was in the best interests of MA and her husband, AA, both of whom have Dementia and lack capacity to make decisions about their residence, care, and contact with others, to have no form of contact with each other.

The couple, married for over 60 years, are placed in separate care facilities due to their differing care needs and are deprived of their liberty under the Mental Capacity Act 2005. The appeal was opposed by AA and the public bodies responsible for their care.

The appeal raised eight grounds, focusing on the weight given to the past and present wishes and feelings of MA and AA, their mutual beliefs and values, and the benefits and burdens of potential contact or relocation. The Appellant argued that the Judge failed to adequately consider these factors, particularly the lifelong values and beliefs associated with their marriage. The appeal also challenged the Judge’s analysis under Article 8 of the European Convention on Human Rights, which concerns the right to respect for private and family life.

The Court granted permission to appeal on the first seven grounds, acknowledging arguable issues with the balancing exercise of the Judge’s decision. However, the appeal was ultimately dismissed on all grounds.

The Judgment emphasized that the Trial Judge’s decision was thorough and based on the overwhelming evidence presented, which indicated that contact between MA and AA was not in their best interests due to the distress it caused, the Court found that the decision was proportionate and necessary, with provisions for regular review as the conditions of both parties evolve. The Judgment also addressed procedural aspects, such as the consolidation of separate applications and the refusal of permission to appeal on the eighth ground related to Article 8 rights.

The Court upheld the original decision, affirming that the separation and lack of contact were lawful and in the best interests of both parties, with ongoing reviews to accommodate any changes in their conditions.

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

Was it correct to act against expressly made, documented wishes in attempts to preserve life? The case of Pindo Mulla v Spain (2024).

Stephanie KayeLeave a comment

The case of Pindo Mulla v Spain (2024) involved a decision made by the Grand Chamber of the European Court of Human Rights in relation to conducting medical treatment for Pindo Mulla (PM). PM was a Jehovah’s Witness who had expressly confirmed that she could not accept blood transfusions due to the moral stance outlined with her religious beliefs.

 

PM had been aware of her condition prior to the required surgery and drew up several documents refusing any type of blood transfusion if it was deemed by medical professionals that she required the same. In 2018, she required further emergency surgery at La Paz Hospital in Madrid, at which point medical professionals sought permission from a judge to transfuse her if necessary, whilst being aware that she had “verbally expressed her rejection of all types of treatment”. Permission was given “to treat the patient arriving from Soria, whose identity is unknown for the moment, with the medical or surgical measures necessary to safeguard her life and physical integrity”, and as a result PM was transfused during the procedure. She then attempted to sue in domestic Courts in Spain, but was unsuccessful in her action.

PM proceeded to argue that her objection to the transfusions had been overridden in contravention of Articles 8 and 9 of the European Convention on Human Rights (right to respect for private and family life, and the right to freedom of thought, conscience and religion).

Conclusion:

The Court found that the decision to proceed with the medical treatment, against PM’s wishes, had occurred due to a decision-making process affected by the omission of essential information about the documenting of these wishes. The Court was satisfied that the actions of the medical professionals had been motivated by an overriding concern to ensure that Pindo Mulla was treated effectively, but that overall it was evident that her rights under Articles 8 and 9 of the Convention had in fact been violated, and that the domestic system had not responded appropriately to PM’s complaints regarding the overruling of her documented wishes.

 

Guidance on interim payments within Court of Protection

Casey McGregorLeave a comment

Practice Direction 19B sets out the guidance on the deputy costs and the charging structure. The guidance states that a deputy can receive an interim payment in advance of the assessment for the year, which is proportionate and reasonable. It is noted that the overall level of interim payments received cannot exceed 75% of their estimated costs submitted to the Office of the Public Guardian or the WIP (whichever is lower) within a reporting year.

If you have a situation whereby, the interim payment taken exceeded your estimated costs or the WIP, you will need to credit note and refund this overpayment immediately.

Once the bill is assessed by the SCCO, and a final costs certificate has been issued, the Deputy will be entitled to receive the balance for that year, which would be the difference between the total of interim payments received during the year and the total assessed costs as set out in the final costs certificate.

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

What Fixed Costs can be taken within Court of Protection cases?

Casey McGregorLeave a comment

Practice Direction 19 (b) sets out the fixed costs that may be claimed by solicitors and public authorities acting in Court of Protection proceedings. In line with the Practice Direction, the revised fixed fees for the Court of Protection, effective from 1 December 2017 is as follows:

 Fixed Fee (plus VAT)
Appointment of Financial and Property Deputy£950.00
Appointment of Health and Welfare Deputy£555.00
Appointment of a Trustee£500.00
First General Management Year£1670.00
General Management for the second and subsequent management years£1320.00
Preparation of the Deputyship Report£265.00
Preparation of the basic HMRC income tax return£250.00
Preparation of the complex HMRC income tax return£600.00
ConveyancingA value element of 0.15% of the consideration with a minimum sum of £400.00 and a maximum sum of £1,670.0 plus disbursements.
Interim PaymentsUp to 75% of the WIP incurred

If you take the fixed cost available, you forfeit the right to an assessment later down the line. If you have authority for the assessment of costs in your Order and you will exceed the fixed cost amount, we recommend that you opt for assessment instead as it’s very likely that you’ll recover more than the above amount. Despite several hourly rate changes in recent years, fixed costs have not changed, so they remain at a low level which most practitioners do not consider suitable for their cases.

The link to the Practice Direction can be found at: https://www.judiciary.uk/publications/fixed-costs-in-the-court-of-protection/

If you have any questions, please do not hesitate to contact Casey Mcgregor at casey.mcgregor@clarionsolicitors.com

Will COP hearings continue remotely in a post-Covid world?

Stephanie KayeLeave a comment

Following the announcement on the 10 June 2021 from the President of the Family Division, Sir Andrew McFarlane, a two-week rapid consultation on remote, hybrid and in-person hearings within the family and Court of Protection (COP) systems has taken place and ended on 27 June 2021.

This was the third survey looking into the impact on hearings following the change of location and format. Unlike the previous two, this was a shorter survey and focused questions on which parts of working remotely should be retained, any further issues that occurred and what best actions could be taken to avoid these. Following the relaxation of some lockdown rules, this survey also looked at the experience of attending court in person.

The survey was completed by the Nuffield Family Justice Observatory (NFJO), an independent organisation which is committed to improving life for children and families by putting data and evidence at the heart of family justice system. The NFJO has gathered evidence from families with children and all professionals working in the family justice system, including judges, barristers, solicitors, Cafcass workers, court staff and social workers and the findings of this will be available for the President’s Conference in July.

We will report sooner on the topic as soon as more information is available about in-person hearings in the future.

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

Joshua Sidding is a Paralegal in the Court of Protection Team of the Costs and Litigation Funding Department at Clarion Solicitors. You can contact him at Joshua.sidding@clarionsolicitors.com and 0113 222 3245