Mental Capacity Case


Her Honour Judge Hilder

 In this case the court considered an application by a trust corporation which was a registered charity (Allied Services Trust), a company limited by guarantee, to be appointed the deputy for property and affairs of an incapacitated person.

The court approved the application after satisfying itself that adequate insurance arrangements were in place and considering whether or not regulation by the Charity Commission was a sufficient safeguard (and deciding it was).

The court went on to set out the procedure to be followed in such cases (similar to trust corporations linked to legal practices). They include declarations/undertakings (to be filed as an additional page to the COP4 filed with the application) that:

  1. The proposed deputy (the trust corporation) is a trust corporation within the meaning of s.64(1) Mental Capacity Act 2005 and can lawfully act as such; and the trust corporation will notify the Public Guardian if that ceases to be the case.
  2. The trust corporation will comply with the Public Guardian's published standards for professional deputies.
  3. The trust corporation is regulated by the Charity Commission; and will notify the Public Guardian immediately if that ceases to be the case. The trust corporation undertakes to maintain insurance cover that:
    1. includes indemnity in respect of all work undertaken by the trust corporation, including discharging the functions of deputyship; and
    2. provides a sum insured for any one claim (exclusive of defence costs) no less than £3 million.
  1. The trust corporation will lodge a copy of the insurance policy with the Public Guardian on appointment and will notify the Public Guardian immediately if there is any reduction in the terms or level of the insurance cover.
Some additional documents should also be filed with the application:
  1. copy of the authorisation by the Lord Chancellor to act as a trust corporation; and
  2. confirmation of its charitable registration.
(A copy of the insurance policy need not be filed with the application, but must be lodged with the Public Guardian on application.)