Re Various Incapacitated Persons and the Appointment of Trust Corporations as Deputies
Summary
In this case Senior Judge Hilder considered and gave guidance in relation to applications on behalf of trust corporations to become property and affairs deputies.
The trust corporations in question were all associated with solicitors' legal practices so the order formulated only relates to such corporations. The judgment does, however, give some consideration to trust corporations associated with banks and charities and, to a lesser degree, trust corporations that have no connection with any regulated entity.
The court's concerns centered on the effectiveness of regulation by a regulatory body (in the cases before the court, the SRA) and the adequacy of indemnity insurance.
After receiving information from the SRA, bond security providers and the OPG, the court set out in the second schedule to the order the information and undertakings it would require from 2 of the 3 types of trust corporation making applications in this case.
Those were trust corporations regulated directly by the SRA and corporations not so regulated but which had no employees save a company secretary, whose directors were all solicitors, who retained the associated legal practice to carry out all the practical work in managing P's affairs and which were covered by that practice's professional indemnity policy.
In essence the court considered that the protection to P afforded in those cases was equivalent to the protection afforded to P if the deputy was an individual solicitor. Indeed, the court recognized that in some respects P's position was better because of the continuity afforded by a trust corporation and the benefits of corporate governance.
The court at paragraphs 65-68 of the judgment set out various factors that it would need to consider in relation to other types of trust corporations, for example those associated with banks or charities. As regards corporations that are not subject to any regulation, the court made it clear that applications from such bodies would be treated on their merits but "with caution", see paragraph 66.
Comment
There are other applications in the pipeline that will, no doubt, result in rulings concerning other types of trust corporations so, watch this space.
