Tag: deputies

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

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.

COP hourly rates – the wait is over!

Stephanie KayeLeave a comment

Following a Hearing on 26 May 2020, the judgment by Master Whalan was handed down today, indicating a 20% increase to the rates payable in Court of Protection cases. After 10 years of no pay rise, the judgment is welcomed by professionals nationally.

The case was brought by 4 professional deputies from 4 different law firms as applicants collectively, namely Wrigleys Solicitors, Freeths LLP, Boyes Turner LLP and Gillhams Solicitors. The issue brought before the Senior Courts Costs Office was that of hourly rates and the fact that the Guideline Hourly Rates (GHR) had not changed for 10 years, but factors like inflation, increasing workload and growing responsibility on professional deputies had caused concern as to the sustainability of Court of Protection work. Clarion prepared the 4 bills of costs for submission, claiming the GHR of 2010 plus a percentage uplift to reflect RPI inflation (of approximately 31%) between 2010 and 2019.

A Directions Hearing took place on 17 April 2020 and the parties were asked to produce evidence in support of the claim. All four deputies, Clarion and instrumental resources from willing members of the Professional Deputies Forum produced evidence, further reinforcing that the 2010 rates were not fit for purpose.

Richard Wilcock of Exchange Chambers represented the parties at the Final Hearing, and relied on the  relevant factors in the Civil Procedure Rules, the GHR Review Committee and recent case law in his submission, all pointing to the fact that changes to the rates payable were essential. He made two key arguments; the first being that COP work is specialised, combined with the fact that deputies carry, in general, higher overheads, including increasing overhead time, which should mean that the current rates are paid with an uplift. His second argument was presented as an alternative solution, in that if the SCCO wanted to rely on the GHR as a starting point, then it must apply an empirical uplift to reflect the incidence of inflation between 2010 and 2019.

Due to inconsistencies in the evidence produced relating to overheads, Master Whalan was not convinced by the first argument. He said that the findings “do not, in my view, demonstrate that the burden is one that is exclusive to COP work or that it is atypically high in comparison with that experienced by practitioners in comparable areas of practice.” He confirmed that the approach set out in Re: Smith and others [2007] and Yazid Yahiaoui and others [2014] was still correct and applicable.

Maser Whalan then moved on Counsel’s secondary argument. He emphasised that he had no power to review the GHR, but recognised that they couldn’t provide “reasonable remuneration unless these rates are subject to some form of periodic, upwards review.” Importantly, Master Whalan states in his judgment, “I do not merely express some empathy for Deputies engaged in COP work, I recognise also the force in the submission that the failure to review the GHR since 2010 threatens the viability of work that is fundamental to the operation of the COP and the court system generally.”

On the topic of inflation, Master Whalan questioned whether CPI was more appropriate than RPI. He  said “I am satisfied that in 2020 the GHR cannot be applied reasonably or equitably without some form of monetary uplift that recognises the erosive effect of inflation”. He further specifies that “If the hourly rates claimed fall within approximately 120% of the 2010 GHR, then they should be regarded as being prima facie reasonable” and provides a suitable table of the GHR with a 20% uplift to assist the Costs Officers undertaking future COP assessments:

  Guideline Hourly Rates
Bands A B C D
London 1 £490 £355 £271 £165
London 2 £380 £290 £235 £151
London 3 £275-320 £206-275 £198 £145
National 1 £260 £230 £193 £142
National 2 £241 £212 £175 £133

Master Whalan concludes by saying that the rates above are applicable to all outstanding assessments, regardless of the year the work was undertaken. He also advised that the recommendations of the GHR Working Group must be adopted in preference to his findings.

This outcome is brilliant news for COP practitioners, providing overdue ratification for the work they conduct. Importantly, the outcome will mean that this area of work continues to be sustainable.

Clarion are delighted to have been a part of this case. We will be applying the 20% uplift to all cases going forward, and are happy to revise existing bills which have not yet been assessed to reflect the changes. Please contact stephanie.kaye@clarionsolicitors.com for further information and queries.