Tag: #COPCosts

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

Understanding the Role of Each Grade Fee Earner in Court of Protection: A Breakdown of Responsibilities

Leah MorrisLeave a comment

Navigating the complexities of Court of Protection requires a clear understanding of the roles and responsibilities of the various fee earners involved in the process. From apprentices and paralegals through to senior partners, each grade of fee earner plays a vital part in managing and overseeing costs, ensuring that both legal obligations and client needs are met efficiently. In this blog, we will explore the specific tasks and duties that correspond to each grade of fee earner, offering insight into how their work contributes to the overall success of Court of Protection cases and the accurate management of associated costs.

Grade D

Grade D fee earners refer to trainee solicitors, paralegals, and other fee earners, such as administrative assistants. These fee earners are not qualified lawyers.

Tasks commonly undertaken by Grade D fee earners include the following:

  • Arranging payments
  • Reviewing invoices
  • Considering incoming correspondence
  • Liaising with the DWP in relation to benefits
  • Preparing standard forms, such as banking forms
  • Amending standing orders
  • Considering bank statements
  • Attending the property for insurance visits.

These tasks are undertaken by Grade D fee earners to assist with the Protected Party’s daily life. Grade D fee earners will often be delegated tasks by more senior fee earners or seek instructions to reduce the costs incurred to the Protected Party. The tasks carried out usually require minimal specialist knowledge and consist of simpler duties to enable the day-to-day management of the case.

Grade C

Grade C fee earners consist of solicitors or legal executives and fee earners of equivalent experience. These fee earners are usually qualified, however, senior paralegals can also be categorised as Grade C based on extensive Court of Protection experience.

Tasks commonly undertaken by Grade C fee earners include the following:

  • Preparing the annual Deputyship report
  • Preparing benefits forms
  • Considering the insurance position
  • Reviewing care plans
  • Drafting COP forms

Grade C fee earners usually have regular day-to-day conduct of the file and will complete tasks to reduce the costs incurred to the Protected Party. However, these tasks may be slightly more complex and require further specialist knowledge than unqualified persons (Grade D) to enable completion. In practice, Grade C fee earners are often the backbone of the day-to-day management of the case. They ensure that routine matters such as reporting, correspondence, and documentation are handled effectively while providing intermediate-level legal support. Their ability to balance both practical and legal considerations helps keep costs manageable while still meeting legal standards.

Grade B

Grade B fee earners include solicitors and legal executives who have been qualified for a minimum of four years.

Tasks commonly undertaken by Grade B fee earners include the following:

  • Liaising with P and their family as the main point of contact
  • Preparing budgets
  • Preparing Witness Statements
  • Liaising with the care home regarding P
  • Making simpler best interests decisions

Claiming Grade B in cases is challenging due to the complexity of tasks to be undertaken, requiring extensive legal knowledge that would necessitate a more senior fee earner than Grade D or C. However, the tasks are not quite complex enough to warrant the expertise of a Grade A fee earner, such as the Deputy. As there is no exhaustive list of specific tasks, it can be difficult to justify why a Grade B fee earner was required to conduct the work in the place of a lower grade fee earner. Grade B fee earners take on a supervisory role in cases, often overseeing the more detailed aspects of the case while ensuring compliance with Court of Protection requirements. Their work bridges the gap between the more routine tasks carried out by Grade C or D fee earners and the high-level strategic oversight of a Grade A fee earner.

Grade A

Grade A fee earners consist of solicitors and legal executives who have been qualified for over 8 years.

Tasks commonly undertaken by Grade A fee earners include the following:

  • Certifying and signing documents
  • Approving payments
  • Making complex and costly best interests decisions
  • Delegating tasks
  • Attending on P for the annual Deputy visit
  • Attending on the IFA
  • Reviewing investment and portfolio reports

Grade A fee earners have minimal overall day-to-day navigation of the matter due to the higher hourly rate charged and therefore the additional costs that would be incurred to the Protected Party. This is because they are focused on providing specialised expertise or high-level legal advice rather than managing the day-to-day administrative tasks and procedural aspects of a case. Their role is usually more strategic, handling complex legal issues and ensuring that the case aligns with broader legal principles. In practice, Grade A fee earners are responsible for making decisions with long-term implications, including the management of assets, complex best interests decisions, and compliance with legal requirements. As a result, the administrative tasks, client communication and file management responsibilities often fall to more junior staff, such as Grade C fee earners or paralegals, who are responsible for maintaining the case on a practical level. This division allows Grade A fee earners to focus on their area of expertise while delegating routine tasks to those with less specialised experience.

In conclusion, understanding the specific responsibilities of each grade fee earner in Court of Protection cases is essential for both managing costs effectively and ensuring the protection and care of vulnerable individuals. From the foundational tasks handled by junior fee earners to the more complex responsibilities undertaken by senior professionals, each role plays a vital part in maintaining the smooth operation of the case. By clearly outlining the tasks and responsibilities across different grades, legal teams can work more efficiently, ensuring that every aspect of the case is addressed with the appropriate level of expertise. This collaborative approach helps to balance both legal and financial obligations, ultimately benefiting the clients who rely on the Court of Protection system for support and guidance.

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

The importance of fulfilling duties as Deputy – the recent case of AECO, Re [2025] EWCOP 5 (T2)

Leah MorrisLeave a comment

In the recent case of AECO, Re [2025] EWCOP 5 (T2), HHJ Cronin addressed the Public Guardian’s application to remove JO as the Deputy for AECO, a woman with Retts Syndrome and several mental and physical disabilities. The case centred on concerns regarding JO’s ability to properly manage AECO’s finances and property. AECO, who has always required significant care, was represented by her mother, JO, and her brother, but JO was not represented legally during the hearing.

JO had served as AECO’s Deputy since 2014, but the Public Guardian raised multiple issues concerning her management of the Deputyship. These included a failure to submit timely annual reports, late payment of supervision fees, mixing AECO’s funds with her own, the improper occupation of AECO’s property, and questionable financial transactions involving large sums directed towards JO and her son. Additionally, JO was accused of not cooperating with the Public Guardian and the interim Deputy.

Key Issues with JO’s Conduct

1. Failure to Report and Pay Fees: JO had failed to submit annual supervision reports on time for several years and was behind on her payments for supervision fees, despite reminders.

2. Mixing of Funds: JO did not open a designated Deputyship bank account for AECO, mixing AECO’s money with her own. This made it impossible to distinguish between their finances.

3. Property Occupation: JO and her son had stayed in AECO’s property for extended periods without contributing to the additional costs, which was a breach of proper financial stewardship.

4. Questionable Financial Transactions: There were concerns about large sums of money being transferred to JO and her son, which required further investigation.

5. Lack of Cooperation: JO had failed to provide necessary documents and cooperate with professionals, despite clear instructions.

These failures had resulted in financial mismanagement, potentially harming AECO’s entitlement to housing benefits and violating her tenancy agreement. The judge emphasized that AECO’s money had been mismanaged, and the situation had become untenable for her continued well-being.

The Court’s Decision

The Court concluded that JO was no longer fit to serve as AECO’s Deputy. Her repeated failures in managing AECO’s affairs and her lack of cooperation with the necessary authorities left AECO’s financial situation precarious, as her money had been lost. In light of these issues, it was determined that removing JO as the Deputy was in AECO’s best interests.

Despite the Court’s desire for a family member to manage AECO’s affairs, they found that no suitable family member was available to take on this responsibility. As a result, the Court confirmed the appointment of Jenny Pierce, an experienced Court of Protection Deputy, to manage AECO’s property and affairs moving forward.

Conclusion

This case highlights the importance of transparency, responsibility, and cooperation in managing the affairs of vulnerable individuals. When a Deputy fails in their duties, it can have serious consequences for the individual they are meant to protect. In this case, the Court’s decision to remove JO and appoint a professional Deputy underscores the need for proper oversight in managing the property and finances of those who cannot do so themselves.

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

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

Tanya ForanLeave a comment

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.

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