Case No: 1422866001
MENTAL CAPACITY ACT 2005
IN THE MATTER OF AB
By Her Honour Judge Hilder
First Avenue House
42-49 High Holborn,
London, WC1V 6NP
ENABLE & THRIVE LTD
Applicant
and
THE PUBLIC GUARDIAN
Respondent
JUDGMENT
The original version of this judgment was issued on 24th October 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.
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.
The Background: Trust Corporation Determinations
There has previously been consideration of issues around the appointment of trust corporations as deputy in a judgment reported as Various Incapacitated Persons and the Appointment of Trust Corporations as Deputies [2018] EWCOP 3 (“The First Judgment”.) The conclusion reached on that occasion was that two categories of trust corporation were appropriate entities for appointment as properly and affairs deputy provided that specified undertakings were given.
There was subsequently consideration of whether a charitable trust corporation was an appropriate entity for appointment as property and affairs deputy in Re TWAH [2019] EWCOP 36, with the conclusion that it was.
This current application concerns a type of trust corporation which has not previously been the subject of proceedings but was envisaged in The First Judgment and there labelled (at paragraph 51) as “Category 3”. The distinctive feature of a Category 3 trust corporation is that it has no external independent regulatory oversight.
The current application
By digital application dated 25th January 2024 Enable & Thrive Ltd (“the Applicant”) applied for appointment as property and affairs deputy for AB, acting through The Owen Kenny Partnership Limited.
The COP4 declaration filed with the application identified that the managing director of Enable & Thrive Ltd, Emily Abigail Allchurch, has been a solicitor for over 19 years; and that she has been appointed as deputy in that capacity whilst working at The Owen Kenny Partnership Ltd, of which she is also a director. It did not address the additional requirements of a trust corporation as set out in The First Judgment. By order made on 13th August 2024 by an Authorised Court Officer, the Applicant was directed to address this omission.
A statement by Emily Allchurch was duly filed. The matter was then referred to me.
On 29th December 2024 I made an order which noted:
that Emily Allchurch’s statement still did not address the requirements set out at (2),(3) and (4) of Schedule 2 of The First Judgment;
various issues with the notification process;
the indication in COP3 capacity assessment that the application was opposed by AB’s daughter and son;
that the application sought authority to sell property but did not include information about AB’s living arrangements.
The order required a further statement from Ms. Allchurch, and provided for issue of the order to all of the Applicant, AB’s son and AB’s daughter.
AB’s daughter then filed a COP5 objection to the application.
On 11th February 2025 I made an order which:
noted three options as to who should be appointed as deputy for AB (the Applicant, AB’s daughter, or a panel deputy);
directed a Dispute Resolution Hearing in respect of the issue as to who should be appointed as deputy for AB;
joined the Public Guardian as respondent to that part of the application concerning suitability of the Applicant for deputyship appointment;
required a statement from the Public Guardian as to “the Category 3 trust corporation issue.”
The Dispute Resolution Hearing took place before District Judge Clarke on 19th March 2025. The parties agreed that a panel deputy should be appointed. It was directed that the part of the proceedings relating to the Category 3 trust corporation issue should continue, with Enable & Thrive Limited not being entitled to any costs from AB’s estate for the continuing part of the proceedings.
By order made on 29th April 2025, Stuart Bradford of HK Law is now appointed as property and affairs deputy for AB.
The Public Guardian duly filed a statement. On 22nd May 2025 I made an order which records that:
no explanation is given in the statement as to the role of the signatory within the Office of the Public Guardian or in particular whether the statement was filed with the benefit of consideration by the OPG Legal Department;
whilst the statement does address the particular factors identified at paragraph 67 of The First Judgment, it failed to address the principle at the heart of the Category 3 issue, namely the absence of any regulatory oversight.
The order directed the Applicant to file a statement either confirming that internal arrangements would be made such that it satisfied the requirements of being a Category 2 trust corporation or setting out its position as to why it should be considered appropriate to be appointed as property and affairs deputy in the absence of any external regulation; and directed a further statement from the Public Guardian.
The Public Guardian then filed a second statement.
Information considered
For the Applicant, I have considered statements by Emily Allchurch dated 23rd September 2024, 24th January 2025, 19th February 2025 and 3rd June 2025.
For the Public Guardian, I have considered statements by Shidul Hoque dated 11th March 2025 and 2nd July 2025.
Enable & Thrive Ltd trust corporation
It is agreed between the parties that Enable & Thrive Ltd is a Category 3 trust corporation.
According to Emily Allchurch’s statements:
Enable & Thrive Ltd was incorporated in 2017, began trading in 2019, and achieved trust corporation status in 2021;
Enable & Thrive Ltd is not regulated by the SRA as it does not carry out regulated activities, but it is registered with the SRA under number 8006304;
Enable & Thrive Ltd is a member of The Association of Corporate Trustees and of the Society of Later Life Advisors, each of which has a code of conduct;
the two directors of Enable & Thrive trust corporation are:
Emily Allchurch herself, who is a solicitor subject to regulation by the SRA;
Lindsey Balchin, who is ‘a part qualified Legal Executive’, ‘has worked in a solicitor’s firm for over 10 years’, ‘is a member of CILEX’ and ‘actively working towards Chartered Legal Executive status’;
Enable & Thrive Ltd “would not be retaining any associated legal practice to carry out all practical work”;
Enable & Thrive Ltd employs approximately 18 (varying slightly across the statements) staff, all of whom ‘are enhanced DBS checked and undergo training in the [Mental Capacity Act 2005] as well as receiving regular training in relation to the management of affairs for elderly and vulnerable persons’;
the staff training ‘includes external training from police and other financial safeguarding experts’;
Enable & Thrive Ltd is covered by its own professional indemnity insurance on the same terms as a legal practice (variously confirmed as ‘£3m’ or ‘£2m with additional cover for cyber security’), and undertakes to continue to provide PII on these same terms;
within Enable & Thrive Ltd ‘all processes are recorded and carried out to a high standard, and client safeguarding is paramount’: all client monies are held ‘in an equivalent manner to a solicitors’ office’, and only Emily Allchurch is named ‘on any client accounts where we act as attorneys’.
The Public Guardian’s first statement shortly records the answers given by Enable & Thrive Ltd when asked about the various matters identified at paragraph 67 of The First Judgment. It would appear that those answers were accepted at face value, with no further investigation or verification process. The conclusion in the statement is that the Public Guardian ‘has no concerns with regards to the Applicant being appointed as deputy from the information received.’
The Public Guardian’s second statement confirms that Shidul Hoque is ‘a lawyer at the Office of the Public Guardian.’ There is some further reasoning set out as follows:
while Enable & Thrive Ltd is not itself a regulated entity, the Applicant has demonstrated that its directors are professionally regulated by the SRA and CILEX;
the Applicant has provided evidence of alternative regulatory safeguards and appears to have fully considered and implemented procedures for reducing risk of mismanagement;
if the Applicant is appointed as deputy, the Public Guardian will receive reports on an annual basis, which will be reviewed by the OPG and any concerns identified;
the Applicant maintains insurance coverage equivalent to that held by a law firm and will also be required to obtain a security bond.
It is not clear to me what ‘evidence of alternative regulatory safeguards’ has been provided to the Office of the Public Guardian, there being no exhibits to the statement:
if this is a reference to Ms. Allchurch and Ms. Balchin being personally subject to a regulatory framework from SRA and CILEX respectively, there is no indication that the Office of the Public Guardian has considered the content/extent of such regulatory safeguards as they would impact on the appointment of the applicant trust corporation;
if this is a reference to Enable & Thrive Ltd being a member of The Association of Corporate Trustees and of the Society of Later Life Advisors, then it is an overstatement. Being a member of a voluntary organisation with a code of conduct is not the same as being subject to a regulatory body. The former is merely agreement to a framework of behaviour within a group whose purposes is to promote the interests of the organisation. Failure to comply may lead to internal sanction or expulsion from the group but not in legal penalties unless the behaviour also contravenes the law. In contrast, a regulatory body exists primarily to protect the public by ensuring that professionals are competent and ethical, mandated by legislation. Failure to meet the requirements of a regulatory body can result in penalties and loss of licence to practise.
Nonetheless, the Public Guardian’s conclusion as set out in the second statement remains that she ‘has no objections to the Applicant’s appointment as Deputy and considers that they have provided sufficient information to demonstrate suitability for appointment should the additional undertakings required by amended.’
Consideration of suitability for appointment as deputy
The law remains as set out at paragraphs 6 – 9 of The First Judgment. In particular:
section 16 of the Mental Capacity Act 2005:
This section applies if a person (‘P’) lacks capacity in relation to a matter or matters concerning –
P’s personal welfare, or
P’s property and affairs.
The Court may –
By making an order, make the decision or decisions on P’s behalf in relation to the matter or matters, or
Appoint a person (a ‘deputy’) to make decisions on P’s behalf in relation to the matter or matters.
The powers of the court under this section are subject to the provisions of this Act and, in particular, to sections 1 (the principles) and 4 (best interests.
….
The court may make such further orders or give such directions, and confer on a deputy such powers or impose on him such duties, as it thinks necessary or expedient for giving effect to, or otherwise in connection with, an order or appointment made by it under subsection (2).
…..
section 19(1) of the Act:
A deputy appointed by the court must be –
An individual who has reached 18, or
As respects powers in relation to property and affairs, an individual who has reached 18 or a trust corporation.
The appointment of a deputy is, as spelled out in section 16(3) of the Mental Capacity Act 2005, a ‘best interests’ decision, and therefore to be made by reference to the facts of a particular case. The Court must be satisfied that the person or body whose appointment as deputy is under consideration is capable of discharging the responsibility properly. As it is put at paragraph 8.32 of the Code:
“The court will decide whether the proposed deputy is reliable and trustworthy and has an appropriate level of skill and competence to carry out the necessary tasks.”
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.
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.
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.
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.
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.”
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. As set out in The First Judgment, quoting a letter from the SRA in response to questions posed within the proceedings:
“60. … Where a solicitor is involved in a non-authorised business they are not able to participate as a practising solicitor but are practising as a non-solicitor. Although we do not regulate the business we regulate the individual solicitor. As they are not practising as a solicitor but are outside of practice only certain parts of the [SRA Code of Conduct] will apply.” The regulatory position in such circumstances is as follows:
• All decisions made by solicitor directors in a non-solicitor business must comply with Principles 1, 2 and 6 and comply with the Outcomes contained in chapter 11 (“Duties to third parties”) of the Code.
• The SRA letter states unequivocally that “Serious irregularities in trust accounts would be a breach of SRA Principle 2 (Integrity) and SRA Principle 6 (behave in a way that maintains the trust the public places in you and the provision of legal service.)”
If the solicitors are practising elsewhere as a solicitor and also operate a non-solicitor business
the solicitor must comply with the Outcomes contained in chapter 12 (“Separate Businesses”) of the Code in relation to their non-solicitor business;
the Outcomes in chapter 10 (“You and your regulator”) will not apply but if a solicitor does not comply with an SRA investigation, the SRA will rely on its statutory powers to obtain information and/or documents;
the Disciplinary Rules “allow the SRA to impose the same sanctions as it would for a solicitor operating a trust corporation through an authorised body.
….
….
Whether a solicitor acts as such or as a director of the trust corporation, s/he is required to:
uphold the rule of law and the proper administration of justice (Principle 1);
act with integrity (Principle 2); and
behave in a way that maintains the trust the public places in [them] and in the provision of legal services (Principle 6).
In terms of sanction and enforcement of those obligations, the Disciplinary Procedure Rules apply. In particular, individual solicitors can be subject to regulatory action taken by the SRA in respect of financial irregularity.”
These are not insignificant regulatory demands on Ms. Allport. 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.
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.
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:
funds protection via the Solicitors Act 1974 was already noted to be of ‘marginal’ benefit (paragraph 63(e) of The First Judgment);
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;
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.
On the other side of the balancing scale, the Court must bear in mind that:
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;
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;
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;
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.
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 as there 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.
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)].
only the [named solicitor directors] will be listed on any client account where Enable & Thrive Ltd acts as deputy.’
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.
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.
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.
Conclusion
As long as the undertakings identified above are provided in each application for which it seeks appointment, I am satisfied that Enable & Thrive Ltd is an appropriate entity to be appointed as property and affairs deputy.
The question of what authorisation Enable & Thrive Ltd should be given in respect of charging fees has not yet been expressly addressed in these proceedings. Having regard to the nature of the organisation as described above, it is my preliminary view that 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 13th June 2025), such application should be clearly reasoned.
HHJ Hilder
5th February 2026