In Re AB (Enable & Thrive Ltd) [2026] EWCOP 11 (T3), Senior Judge Hilder, not without a certain degree of reluctance, confirmed that a trust corporation which has (corporately) no independent regulatory oversight can, in some situations, be appointed as a property and affairs deputy. That category of trust corporation had been envisaged in an earlier judgment of Senior Judge Hilder, Various Incapacitated Persons and the Appointment of Trust Corporations as Deputies [2018] EWCOP 3, identified Re AB as “the First Judgment.”
Senior Judge Hilder revisited the conclusions of the First Judgment as regards the undertakings that must provided before any appointment of such a trust corporation can be made, thus:
25. The conclusion reached at paragraph 31 of The First Judgment still holds good: the information necessary to satisfy the court must be ‘built into’ the application process. However, in consideration of a Category 3 trust corporation, it is necessary to revisit the undertakings which were there identified as sufficient.
a. The first undertaking required is that the entity seeking to be appointed as deputy is indeed a trust corporation within the meaning of section 64(1) of the Mental Capacity Act 2005, can lawfully act as such, and will inform the Public Guardian immediately if that ceases to be the case.
The Applicant has already confirmed the trust corporation status of Enable & Thrive Ltd. There is no suggestion that there would be any difficulty in further undertaking to inform the Public Guardian if that ceased to be the case.
b. The second undertaking required is that the trust corporation will comply with the Public Guardian’s published standards for professional deputies.
As already proposed at paragraph 44 of The First Judgment, a Category 3 trust corporation should be held to the same standards as any other trust corporation. The Applicant has not yet expressly given this second undertaking, but neither has it or the Public Guardian identified any reason why it could not.
c. The third undertaking required is the crux of the current application, relating to regulation by the SRA. Obviously Enable & Thrive Ltd cannot give either version of this third undertaking.
26. It is helpful to set out in full what is said in The First Judgment as to why the question of external regulation is relevant:
“45. … The Court’s concern is to protect the interests of the incapacitated person. The most likely risk to an incapacitated party from the actions of a property and affairs deputy is misappropriation/loss of that person’s assets. Any person or body appointed as deputy is subject to the Court’s power to terminate the appointment and to supervision by the Public Guardian, and the Court routinely appoints as deputy lay people who will be subject to no other regulation. If misappropriation/loss occurs, the prospects of recovering the misused funds are independent of regulation. Regulation is reactive – if a problem arises, a regulated person or body may be subject to sanctions but they are likely to come after the event. What assurance then does external regulation provide?
46. Where a lay, and therefore unregulated, deputy is appointed, the deputy is most commonly a family member or acquaintance of the protected person. Such a deputy is not usually authorised to charge for providing the functions of deputyship: he or she performs their duties for free, entitled only to claim reasonable expenses. In contrast, a trust corporation deputy is unlikely to have been previously involved with the protected person and generally anticipates authorisation for the charging of fees. Whereas a lay deputy is likely to be appointed only for a small number of protected persons, a trust corporation is likely to seek appointment for many protected persons, thereby aggregating a large risk.
47. Adherence to a regulatory framework provides a marker of standards; and the possibility (threat?) of sanctions for failure to meet prescribed standards will commonly operate proactively as an incentive to compliance. Regulation is not a guarantee of anything but it is, as Mr Rees describes, “a further check on what the deputy does….[because there is] someone else sitting on their shoulder.” The court must of course consider every case on its facts but where there is a requirement to comply with appropriate external regulation, the Court can derive assurance of the likelihood that a potential deputy will behave in an appropriate fashion to meet the best interests of P; and if he does not, that other agencies are likely to step in.”
27. Neither the Applicant nor the Public Guardian has suggested otherwise, so I infer that Ms. Allchurch’s personal involvement in Enable & Thrive Ltd is, for the purposes of SRA regulation, the same as if Enable & Thrive Ltd were a Category 2 trust corporation. […]
28. [The regulatory obligations imposed by the SRA] are not insignificant regulatory demands on Ms. Allchurch. She is clearly aware of her professional obligations. As she says in her latest statement “As a practising solicitor, I take my obligations to clients very seriously, ensuring that they receive a high standard of professional serve that is also affordable. … Any impropriety within Enable & Thrive would jeopardise not only my practising certificate but also my reputation and livelihood…” It may be expected that this type of leadership would have a positive effect on the conduct of the organisation as a whole.
29. However, any SRA intervention as a result of these regulatory obligations would be solely in respect of Ms. Allchurch herself – not the Enable & Thrive Ltd trust corporation, not the non-solicitor co-director, and not the non-solicitor employees. Chapter 10 of the SRA Code (written notices to provide information, explanation and documents) would not apply, funds held by Enable & Thrive Ltd would not be protected by the Solicitors Fund Act 1974, and its clients would neither have right to claim on the Solicitors Compensation Fund nor be able to make a complaint to the SRA or the Legal Ombudsman about the trust corporation itself. All of that is the same as for Category 2 trust corporations, and the reason why The First Judgment (paragraph 62) required the third undertaking.
30. So, the current application requires the Court to evaluate how far this more limited SRA oversight impacts on the suitability of the applicant trust corporation for appointment as deputy:
a. funds protection via the Solicitors Act 1974 was already noted to be of ‘marginal’ benefit (paragraph 63(e) of The First Judgment);
b. being unable to claim from the Solicitors’ Compensation Fund is a relative disadvantage, but it is to be noted that awards from that fund are discretionary and the possibility of recourse to recovery via the security requirement of deputyship remains;
c. avenues of complaint can provide a significant service in addressing senses of grievance, but they come into play after the event rather than operating in a directly protective fashion.
31. On the other side of the balancing scale, the Court must bear in mind that:
a. deputyship appointment may be, and often is, held by persons outside any regulatory framework. The issue of aggravated risk arises here (because Enable & Thrive Ltd has already made applications for deputyship appointment for other individuals, and clearly plans to provide a commercial service rather than meeting a single individual need) but it arises too in respect of a number of other ‘third sector’ deputyship providers, and has been considered manageable;
b. there is a general need to ensure a reasonable diversity of deputyship providers to meet the needs of vulnerable people with estates of varying types (from modest to sizeable assets, simple to complex administrative requirements) to be managed at proportionate cost;
c. Enable & Thrive Ltd has satisfied the Public Guardian in respect of all those matters which were considered important at paragraph 67 of The First Judgment;
d. so long as Ms. Allchurch is a director, there is “someone else sitting the shoulder” of Enable & Thrive Ltd such as to provide some assurance to the Court that the organisation will behave in an appropriate fashion. The limitations of the regulatory oversight would be a factor to be considered, alongside the availability of professional indemnity insurance, when the security requirement of deputyship is determined in accordance with Re H (A Minor and Incapacitated Person); Baker v. H and the Official Solicitor [2009] COPLR Con Vol 606.
32. Taking all these factors into account, and notwithstanding the deficiencies in the early stages of this particular application as identified at paragraph 9(a), (b) and (d) above, after cautious consideration I am satisfied that the inability of Enable & Thrive to give the third undertaking of The First Judgement is not such as to render it unsuitable for appointment as property and affairs deputy for as long asthere is some degree of regulated involvement at director level. Ms. Allport’s professional obligations even whilst acting for the trust corporation, rather than directly as a solicitor, have value in themselves and in the impact they are likely to have on the organisation as a whole.
33. In lieu of the third undertaking of The First Judgment, the following wording should be adopted:
‘(i) Enable & Thrive Ltd is a Category 3 trust corporation within the meaning of Various Incapacitated Persons and the Appointment of Trust Corporations as Deputies [2018] EWCOP 3 but the following of its directors is/are a solicitor regulated by the SRA:
[name(s)].
(ii) only the [named solicitor directors] will be listed on any client account where Enable & Thrive Ltd acts as deputy.’
34. The COP4 declaration with this version of the third undertaking in each application for the appointment of Enable & Thrive Ltd as deputy should be signed by (one of) the person(s) named in the first part of this revised third undertaking.
35. The fourth undertaking of The First Judgment is that the trust corporation will inform the Public Guardian if there is any change to the matters set out in the third undertaking. This should also be required of a Category 3 trust corporation in respect of the amended third undertaking.
36. The fifth and sixth undertakings of The First Judgment relate to the insurance cover in respect of the trust corporations discharge of the functions of deputyship. Ms Allport’s account of the insurance in place for Enable & Thrive Ltd does not suggest that these undertakings could not or should not be required.
In a slightly unconventional, but pragmatic, approach,
1. The original version of this judgment was issued on 24thOctober 2025 to Enable & Thrive Ltd and the Public Guardian as a “Preliminary View, Subject to Parties’ Further Written Submissions”. There have been no attended hearings. At all times the proceedings have proceeded ‘on the papers’ and therefore in private.
2. The Court has received from both Enable & Thrive and the Public Guardian written submissions confirming that they do not seek to challenge the conclusions set out in the Preliminary View document. It is therefore now issued as a judgment pursuant to Rule 4.2(2) of the Court of Protection Rules 2017 and an order which prohibits publication of any information which may lead to the identification of AB.
This meant that the parties must be taken to have agreed with Senior Judge Hilder’s preliminary view at paragraph 38 in relation to charging fees that:
38. […] the authorisation should appropriately be for fixed costs at the solicitor’s rate (but limited to that rate.) In respect of any individual appointment it would remain open to the Applicant to seek authorisation for SCCO assessment of costs but, if Enable & Thrive Ltd is indeed to provide the affordability of service for which Ms. Allchurch advocates (paragraph 18 of her statement dated 13thJune 2025), such application should be clearly reasoned.
