A curious but enlightening development from the recent judgment in ACC & Ors is that there was an unreported judgment from 2016 relating to conflicts of interests and investment management.
A key element of being a professional deputy is that you are a “fiduciary”, which means you can’t profit from your position.
Generally speaking, when it comes to conflicts of interests in Court of Protection matters, the only way you can deal with a conflict is to avoid it altogether, or seek approval from the Court of Protection that the proposal is in the client’s best interests.
So what can we learn about conflicts of interest and investments by deputies?
In ACC, the judge didn’t need to but chose to refer to the unreported judgment in Re MWS. It is clear that the Court is concerned by conflicts in investment management.
The Public Guardian, the official supervisor of deputies, was not comfortable with the deputy’s appointment of an in-house financial adviser.
The deputy wanted to instruct its internal financial adviser to manage the investments. The Court stated that unless the Law Society and the Public Guardian agreed a proposal to make that acceptable, the deputy either had to recuse itself (give up on its attempts to instruct an internal team) or seek authority from the Court every time the deputy wanted to instruct its internal financial advisors.
How Boyes Turner can help
Boyes Turner LLP do not offer financial advice and do not have associated financial advice firms. We prefer to use the expertise of independent advisors who are independently accountable.
Professional deputies are now clear that, following ACC and Re MWS, every conflict of interest, and every appointment of internal or associated financial advisers, must be approved by the Court of Protection.
If the Deputy has any financial interest in the company that they choose to invest with, they must seek approval from the Court to use them.
If you need any advice on how to approach investments as a deputy contact our Court of Protection team here.
