New guidance on appointing trust corporations as deputies
Claire van Overdijk represents the Public Guardian in Court of Protection proceedings setting down new guidance on the appointment of trust corporations as property and affairs deputies.
The Court of Protection has handed down an important judgment in the matter of: Various Incapacitated Persons and the Appointment of Trust Corporations as Deputies  EWCOP 3. This sets down guidance for trust corporations that apply to the Court for appointment as deputy for incapacitated persons.
As identified in the judgment, there is presently no system in place as between the Court, the Office of the Public Guardian (PG) and the Ministry of Justice’s approved bond supplier on which the Court can rely as to the suitability of a trust corporation for appointment as deputy prior to making such appointment. A trust corporation can apply to be on the PG’s panel of deputies. However, there is no ‘panel’ of trust corporations that have demonstrated compliance with legal requirements to act. Therefore, information necessary to satisfy the Court as to suitability must now be ‘built into’ the application process itself.
In the judgment, Her Honour Judge Hilder has detailed the information required by the Court to be satisfied that a trust corporation is a proper legal person to hold the appointment of deputy. The judgment also refers to how the level of security bond should be set.
The relevant information in the judgment is as follows:
- whether the trust corporation can lawfully act as such
- whether its internal management, supervision and controls are appropriate
- the applicable external regulation (apart from the supervision of the PG), and
- the amount of protected persons’ assets and funds held; the level of insurance cover which the trust corporation has.
To give effect to this new framework, Her Honour Judge Hilder has recommended that the current COP deputy declaration form (COP4) be amended to incorporate this information. Until that can be achieved, a trust corporation seeking appointment as a property and affairs deputy should now file with its application the current standard COP4 form with an additional page attached to address schedule 2 of the judgment and provide the relevant undertakings.
The eleven trust corporations involved in the proceedings are all associated with solicitors’ legal practices. Nevertheless, the judgment is also applicable to other types of regulated trust corporations (such as charities, banks and other financial institutions), as well as unregulated trust corporations. This judgment therefore affects all future applications by trust corporations to the Court and is a must read for anyone practising in this area.
The judgment is available to read here.
Barristers: Claire van Overdijk