Deputyship and trusts at the Court of ProtectionNov 21st, 2016
The case of Watt and ABC at the Court of Protection raises some very interesting issues with regards to the use of trusts rather than Deputyship for Protected Beneficiaries.
Mr Justice Charles concludes:
I make the following points:
(1)The management regime for a substantial award of damages should be considered as soon as is practicable.
(2)This will involve a careful consideration of what the claimant (P) has and does not have the capacity to do and of his or her likely capacity and/or vulnerability in the future. This is relevant to both jurisdictional and best interests issues.
(3)It will also involve the identification of all relevant competing factors and should not proceed on the basis that there is a strong presumption that the COP would appoint a deputy and would not make an order that a trust be created of the award. Rather, it would balance the factors that favour the use of the statutory scheme relating to deputies (that often found the appointment of a deputy in P’s best interests) against the relevant competing factors in that case.
(4)It will also involve the identification of the terms and effects (including taxation) and the costs of those rival possibilities.
(5)Care should be taken to ensure that applications that are not straightforward are not decided by case officers in the COP but are put before judges of the COP.
(6)The possibility of listing case management hearings or the final hearing of QB proceedings before a judge who is also nominated as a COP judge should be considered. However, the potential for conflict between the respective roles of the judge in the two courts (e.g. one arising from a consideration of without prejudice communication in respect of the QB proceedings concerning its settlement that is not agreed or not approved by the COP judge) and the respective jurisdictions of the two courts need to be carefully considered.
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