The Perspective of the Court of Protection
The Court of Protection has held that, when considering which asset management structure should be used to hold the assets of a mentally incapacitated individual, a deputyship will be the normal starting point but other structures, such as personal injury trusts, should be chosen if using them would be in the best interests of the individual. This would not preclude the court from ordering that a settlement be set up instead if this was thought to better serve the individual’s best interests.
In deciding what is in the individual’s best interests, a series of considerations should be applied to the facts of each case including tax, investment powers, costs and the availability of means-tested benefits. The court should also look at fundamental factors such as the limits to a deputyship regime and the ability to deal with the totality of the mentally incapacitated persons affairs, amongst other factors, and apply them to the particular facts of each case. The duties of trustees and deputies should also be compared as well as the protection available under a Trust or a Deputyship. The individual’s assets should also be considered as well as the associated comparative costs.
Whether under a Personal Injury Trust or a Deputyship, Wilson Browne are able to advise and assist in both the application process in the Court of Protection proceedings as well as the formation of a Personal Injury Trust and the on-going administration for either.