Baker v H & Anor [2009] EWHC B31 (Fam) (15 October 2009)

Baker v H & Anor [2009] EWHC B31 (Fam) (15 October 2009)

The appropriate level of security for a professional deputy should be determined by a structured assessment of the real risk to the protected person's assets, taking into account the value and vulnerability of assets under the deputy's control, the likelihood and consequences of default, the existence of professional indemnity insurance, and the costs to the estate. Where adequate professional indemnity insurance exists, the security bond may be set at a lower level sufficient to cover immediate needs pending insurance payout, rather than the full value of the estate.

Citation
[2009] EWHC B31 (Fam)
Parties
Applicant/deputy: Mr Niall David Baker; Respondent/protected Person: H (a child, by the Official Solicitor as litigation friend)
Jurisdiction
England and Wales
Judgment Date
15 October 2009
Procedural Posture
Court of Protection Application for Reconsideration / Reconsideration of Security Order Under Rule 89 of the Court of Protection Rules 2007
Outcome
Application for reconsideration of security order allowed.
Legal Topics
Security for Deputies, Professional Indemnity Insurance, Best Interests, Deputyship Orders
Mental Capacity Law Court of Protection Security for Deputies Professional Indemnity Insurance Best Interests Deputyship Orders

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Parties

Mr Niall David Baker

Applicant/deputy

H (a child, by the Official Solicitor as litigation friend)

Respondent/protected Person

Procedural Posture

Court of Protection Application for Reconsideration / Reconsideration of Security Order Under Rule 89 of the Court of Protection Rules 2007

Legal Issues

  1. 1 What is the appropriate level of security to be ordered for a professional deputy under the Mental Capacity Act 2005?
  2. 2 Should the existence of professional indemnity insurance affect the quantum of security required?
  3. 3 How should the Court of Protection approach the assessment of security for deputies in light of the new statutory regime?

Ratio Decidendi

The appropriate level of security for a professional deputy should be determined by a structured assessment of the real risk to the protected person's assets, taking into account the value and vulnerability of assets under the deputy's control, the likelihood and consequences of default, the existence of professional indemnity insurance, and the costs to the estate. Where adequate professional indemnity insurance exists, the security bond may be set at a lower level sufficient to cover immediate needs pending insurance payout, rather than the full value of the estate.

Court Disposition

Application for reconsideration of security order allowed.

Orders

  • The level of security required from Mr Baker as deputy is to be reconsidered and set at a level reflecting the real risk to H's estate, taking into account the existence of professional indemnity insurance and the limited funds accessible to the deputy.