Our Court of Protection specialists today secured a landmark ruling which will have a significant impact on the way the property and affairs of incapable brain injured litigants are managed.
Up until now there had been uncertainty as to what was more appropriate for brain injured incapable people – either the deputyship regime (whereby an appointed Deputy is responsible for managing their financial affairs) or a personal injury trust (into which compensation money is paid and is managed by appointed trustees).
In this instance we successfully argued in favour of a personal injury trust for their client. However as a result of the ruling it is now likely to be much harder to have a personal injury trust settled for an incapable person in the future. Unless the circumstances are thought to significantly differ from the norm, brain-injured litigants will be directed down the deputyship route.
This case involved a seven-year-old girl with severe cerebral palsy whose complex medical negligence compensation claim, which was also brought by our team, had been severely compromised because of issues over causation. As a result a significant shortfall developed between the compensation award and the long term expenditure needs of the young client.
Her Honour Judge Hazel Marshall QC agreed with our Court of Protection and Personal Injury Trust specialist Simon Heapy that it would be in the client’s best interests to operate outside of the usual deputyship regime by settling a personal injury trust in order to benefit from the lower yearly costs of the trust compared to that of a deputyship. This meant the compensation money received could be better spent on equipment and care. The ruling appointed joint trustee status to professional deputy Andrew Cusworth and the claimant’s mother, giving her day-to-day control of her child’s specialist care needs.
The approval did not come without a struggle. The initial application was unsuccessful with the Judge presiding over the matter declaring that there were virtually no circumstances where it is in the best interests of an incapable person to have their financial affairs managed outside of the supervision and protection of the Court of Protection under a deputyship.
We asked for a reconsideration of the decision, progressing on a pro bono basis with eventual success.
We welcome the clear direction now being given from the Court of Protection. Simon Heapy said: “This case will add some much needed clarity to what had become an increasingly uncertain area of the law.”
Decisions of this nature will always be on an individual case basis and in the clients best interests, but we believe it is likely to lead to a significant rise in the number of joint deputyships, where a parent or other family member acts alongside a professional deputy as a way to reduce the impact of legal fees.
Head of Department, Andrew Cusworth commented: “The most important aspect of this case is that we have managed to achieve the best result for our client. We anticipate that this judgment will contribute to savings of around £2,000 per year, which over our client’s lifetime will mean a considerable amount.”
“Certainty within the law is of critical importance, particularly when we are talking about the funds of vulnerable people who require as much money as possible for specialist care and equipment.”