Deputies—appointment, duties and powers

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Featured Private Client content

Notaries and notarisation—notarisation

The principles of the notarial act are that it is:•an act of the notary and not of the parties named in the document•a record of a fact, event or...

Creation of trusts—blind trusts

What is a blind trust?A blind trust is a trust that is aimed at preventing conflicts of interest arising. Usually, the settlor and beneficiary of the...

Nature and classification of trusts—the three certainties

CertaintyIn order for a settlor to create a private express trust the three certainties must be present, namely:•certainty as to the intention of the...

Lifetime gifts

A lifetime gift is a gratuitous transfer of ownership of any property between living persons and not made in expectation of death. In contrast, gifts...

Practice notes

The meaning of relevant property

The term 'relevant property' defines a category of trust property which is subject to a special regime for inheritance tax (IHT). As described in...

Produced in partnership with Paul Davies of Clarke Willmott 12th Jan

Practice notes

Capacity to litigate

On the face of it, there would appear to be no specific impediment, if there is no reason to suppose that a person is without capacity, in them...

9th Nov

Practice notes

Offshore trusts—offshore income gains (OIGs)

Offshore income gains (OIGs) are gains realised on the disposal of interests in offshore funds which are either:•non-distributor offshore funds, or...

9th Nov

Practice notes

Trust disputes—sham trusts

The issue of sham is most likely to be raised by the settlor's creditors or former spouse if the settlor is involved in matrimonial proceedings, who...

9th Nov

Practice notes

What is an offshore trust?

A trust is formed either by lifetime gift or on death when a person (the settlor) transfers assets to another person or persons (the trustees) to hold...

Produced in partnership with Mourant Ozannes and Carey Olsen 12th Jan

Practice notes

Bermuda trusts

This Practice Note outlines Bermuda trust law and focuses upon its unique features and recent reforms, such as Bermuda's regime for private trust...

Produced in partnership with Vanessa Lovell Schrum and Caljonah Smith of Appleby, Bermuda 12th Jan

Practice notes

Cayman Islands STAR trusts—common uses

This Practice Note provides guidance on Cayman Islands STAR trusts. For general information about the Cayman Islands, see Practice Note: Private...

Produced in partnership with Mourant Ozannes and Carey Olsen 12th Jan

Practice notes

Trust disputes—court jurisdiction and procedure

Trust litigation has been classified as being of three types:•a dispute as to the trusts on which trustees hold the subject matter of the settlement•a...

9th Nov

Practice notes

Trustees—power of advancement

Where a beneficiary either:•is a minor (ie under the age of 18) and unmarried or•has attained majority or has married under that date but is required...

9th Nov

Practice notes

Termination of trusts—methods of termination

Duration of a trustThe duration of an express trust is subject to the restrictions imposed by the rules against remoteness of vesting and against the...

9th Nov

Practice notes

Termination of trusts—beneficiaries

Duty to distribute to the correct beneficiariesOn the termination of the trust, the trustees are under a duty to distribute the trust assets to the...

9th Nov

Precedents

Deed of appointment terminating discretionary trust

This Deed of Appointment is made on [date] by [trustee] of [address] and [trustee] of [address] (the Trustees).Background(A)This Deed is supplemental...

9th Nov

Practice notes

Situs of assets for succession and IHT

When you advise an individual on cross-border issues or offshore tax planning, it is important to establish the 'situs' (ie location) of the assets...

9th Nov

Precedents

Partial deed of revocation of lasting power of attorney

This partial deed of revocation is made on [date] by [donor] of [address].1I granted a Lasting Power of Attorney for [Financial Decisions/Health and...

9th Nov

Practice notes

Liferent trusts—Scotland

Liferent trustsA liferent trust (or trust liferent) is a trust which, when settled, confers a use and income benefit, or both, in the trust property...

Produced in partnership with Peter Murrin of Turcan Connell 12th Jan

Scottish Law

Practice notes

Creation of trusts in Scotland

Express creation of trustsA trust is constituted expressly where the owner of property (the truster) transfers property to trustees to hold for...

Produced in partnership with Yvonne Evans, Law Lecturer, Solicitor (non-practising), TEP, University of Dundee 12th Jan

Scottish Law

Most recent Deputies—appointment, duties and powers content

Practice notes

Choosing the deputy

Although the Court of Protection (the court) can make a one-off order in respect of a person who lacks capacity, this is not always the best solution....

9th Apr

Practice notes

Deputyship returns and accounts

For all those appointed by the Court of Protection to act as a deputy for property and financial affairs or health and welfare, either as a lay deputy...

Produced in partnership with Patricia Wass, Holly Miéville-Hawkins and Nikki Bedford of Enable Law, part of the Foot Anstey LLP group 9th Apr

Practice notes

Data protection obligations for attorneys and deputies

The UK’s data protection provisions as from 31 December 2020In the UK from 11pm on 31 December 2020, revised data protection provisions came into...

Produced in partnership with Craig Ward, of Lundie, of Craybeck Law 9th Apr

Practice notes

Application to appoint a deputy

Although the Court of Protection (the court) can make a one-off order in respect of a person who lacks capacity, this is not always the best solution....

9th Apr

Q&As

Can a deputy pay gratuitous care costs which pre-date a deputyship order (ie where the gratuitous care costs relate to the period starting from the date the compensation payment was made into court until the official appointment of the deputy, several months later)?

As indicated in the query, it is well established that a professional deputy may agree an annual gratuitous family care payment with P’s family to...

1st Apr

Q&As

Do you have a Precedent clause for inclusion in a TR1 (transfer of registered land) where one of the sellers is a court deputy acting pursuant to a court order under section 36 of Trustee Act 1925 for the co-owner who lacks capacity?

The following can be adapted for your purposes in relation to the individual lacking capacity, see Precedents:•Transfer—whole—registe...

1st Apr

Q&As

Is a deputy for an individual without testamentary capacity, who is of uncertain domicile, able to create a statutory Will, per Practice Directions 9E and 9F?

Under section 18(1)(i) of the Mental Capacity Act 2005 (MCA 2005), the Court of Protection may authorise the execution of a Will for P, which, under...

Produced in partnership with Graham Stott of gunnercooke LLP 15th Mar

Practice notes

Financial LPAs and deputyships—comparison of attorney and deputy powers

A person who makes a lasting power of attorney (LPA) is commonly referred to as the 'donor', whereas a person on whose behalf the Court of Protection...

15th Mar

Practice notes

Deputyship—the deputy’s duties and powers

DutiesThe duties of court-appointed deputies are set out in the Mental Capacity Act 2005 (MCA 2005) and the Mental Capacity Act 2005 Code of Practice...

15th Mar

Practice notes

Health and care LPAs and deputyships—comparison of attorney and deputy powers

A person who makes a lasting power of attorney (LPA) is commonly referred to as the 'donor', whereas a person on whose behalf the Court of Protection...

15th Mar

Practice notes

Practical first steps on deputyship appointment—property and affairs deputy

This Practice Note provides a practical guide to the initial steps that a property and affairs deputy should take after being appointed.Checking and...

10th Mar

Practice notes

Practical first steps on deputyship appointment—health and welfare deputy

This Practice Note provides a practical guide to the initial steps that a deputy should take after being appointed.Checking and understanding the...

10th Mar

Practice notes

Changing or ending a deputyship

A protected party (P) will come within the jurisdiction of the Court of Protection (the court) only when there is medical evidence of incapacity. The...

Produced in partnership with Thomson Snell & Passmore 5th Mar

Practice notes

The deputyship order

Order appointing the deputyUnless the application and notification procedure give rise to any queries or objections, and provided at least 14 days...

3rd Mar

Q&As

Does a court-appointed deputy have to be granted an express power to invest the donor’s assets in a discretionary management scheme in order to do so?

Duties of court-appointed deputiesThe duties of a court-appointed deputy are set out in:•the Mental Capacity Act 2005 (MCA 2005)•the Mental Capacity...

24th Feb

Q&As

Is the attorney under a registered Property & Financial Affairs LPA entitled to request and receive either the donor's original Will or a copy of the donor's Will? Does it matter if the donor retains mental capacity at the time of the attorney's request?

A solicitor has a common law duty to keep his or her client’s affairs confidential. This extends to the contents of the Will and the instructions...

Produced in partnership with Adam Draper of Shoosmiths 15th Feb

Q&As

Upon the death of a protected person with no personal representatives must the deputy apply to the Court of Protection for a further order to enable him to administer the estate of the deceased protected person?

A deputy holds power on behalf of a protected person (someone who is not capable of managing their own affairs) pursuant to an order of the Court of...

Produced in partnership with Chris Bryden of 4 King’s Bench Walk 15th Feb

Precedents

Letter to GP to complete COP3 in connection with deputyship application

Dear Dr [insert name of GP]Re: [insert name of patient]We are instructed on behalf of [insert name of proposed deputy] and understand that the above...

14th Feb

Q&As

Does a Deputy under a Deputyship Order have the power to access P's Will?

The scope of a deputy's powers will depend on the terms of the Order by which the deputy is appointed. The deputy is typically given general authority...

10th Feb

Q&As

H and W own the legal title to their house and hold it for themselves as beneficial joint tenants. They both lack capacity and are in care. H made a property and financial affairs Lasting Power of Attorney appointing A and B as their attorneys. A and B are also now appointed as W’s deputies. How should A and B obtain permission to sell the house?

An attorney under a Lasting Power of Attorney (Property & Financial Affairs) may decide on all any matters concerning the donor’s property so may sell...

Produced in partnership with Graham Stott of gunnercooke LLP 9th Feb