Trusts and deputy services
The Official Solicitor is willing to extract grants of administration (with or without will annexed), and to accept appointment as trustee, judicial trustee, and guardian of minor's estates, where failure to do so would result in an injustice to a vulnerable person, particularly those under legal disability such as children or adults who lack capacity to manage their affairs. He needs to be satisfied that there is no other suitable person willing and able to undertake this job, and it is necessary for the court to authorise or, with his consent, appoint him to do this.
The Court of Protection has powers to make declarations, decisions or orders on welfare matters in addition to financial matters. The Court has powers to appoint financial or welfare deputies. With effect from 1 October 2007 all existing receivers including the Official Solicitor became financial deputies. This means the Official Solicitor has the authority to make decisions about property and affairs on behalf of a person who lacks capacity but he (like all professional deputies) must follow the Code of Practice. The Official Solicitor may be asked to act as a financial deputy by the Court of Protection if there is no one suitable or willing to act.
The OPG has a regulatory rather than decision making role in respect of the deputies. The OPG will continue to supervise the work of the Official Solicitor as a financial deputy but the level of supervision will be determined by the OPG following a risk assessment.
Division of work between the Public Trustee and the Official Solicitor
Both the Official Solicitor and the Public Trustee continue to accept estates and trusts work on a "last resort" basis - broadly where there is no one else suitable, able or willing to act and an injustice to a vulnerable person would result if they did not do so. However, it will not always be clear to the legal profession or members of the general public to which part of the joint office enquiries should be directed.
All new requests for assistance, whether initially addressed to the Public Trustee or to the Official Solicitor to the Senior Courts, should be directed in the first instance to Trusts and Estates General Enquiries.
Restrictions on the allocation of Estates and Trust Work
In view of statutory restrictions placed on the Public Trustee, only the Official Solicitor can consider accepting new matters in which:
- an estate is, or is likely to be, insolvent
- a trust arises exclusively for religious or charitable purposes
- the administration of an estate or trust involves managing a business
- a trust arises under a creditors' deed of arrangement; and
- the Deceased died domiciled outside England and Wales
and it must be emphasised that cases falling into the above categories will, in any event, only be taken on in exceptional circumstances and in accordance with the last resort criteria outlined above, particularly those involving the running of a business.
In view of Civil Procedure Rule 21.12 only the Official Solicitor can consider accepting matters where the appointment of a guardian of a minors' estate is required. Thus the court has power to appoint ONLY the Official Solicitor to be the guardian of a minor's estate:
- where money is paid into court under CPR (21.11)
- for the purpose of dealing with Criminal Injuries Compensation Authority Funds
- for dealing with monies awarded to a minor in a foreign court
- for dealing with pension fund proceeds; and
- where the court deems it desirable to make such appointment.
In addition the Public Trustee
- is the legal holder of land under Part IV of the First Schedule to the Law of Property Act 1925 (land held in undivided shares) and Part V of the First Schedule to the Law of Property Act 1925 (Common Land),
- takes title on death under section 9 of the Administration of Estates Act 1925, and
- maintains a register of notices affecting land under Section 18 of the Law of Property (Miscellaneous Provisions) Act 1994.
Other allocations of Estates and Trust Work
There is a wide range of circumstances in which both the Public Trustee and the Official Solicitor have, in recent years, been invited to act as executor, administrator or trustee.