The decision in the Court of Protection (COP) in the case of Buckley has highlighted the obligation of Attorneys and Deputies with regards to investing assets.
This case has shown that there is sometimes a lack of awareness over the duties and obligations of Attorneys and Deputies.
An Attorney or Deputy may think he was entirely proper and reasonable to keep the incapacitated person (P)’s assets in a bank account for instance because they do not wish to take a risk (but then similarly get no return). Alternatively they may do something similar to Miss Buckley’s niece (C) and think they should be investing but investing in something entirely inappropriate (in this case a reptile business).
In Buckley Senior Judge Lush stated that there are ‘two common misconceptions when it comes to investments. The first is that Attorneys can do whatever they like with [P’s] funds. The second is that Attorneys can do whatever [P] could or would have done personally’.
Judge Lush reminded C that as an Attorney she had a fiduciary obligation and that she was required to act in P’s best interest as set out in the Mental Capacity Act (MCA). He stated that until such times as the Office of the Public Guardian issues its own guidance he would suggest that Attorneys and Deputies should comply with the provisions of the Trustee Act 2000. This is especially in regard to the Standard Investment Criteria and the requirement to obtain and consider proper advice.
He went on in his judgement to give advice to suitable investments stating that Attorneys/Deputies should ensure that any investment products or services they acquire are provided by individuals of firms who are regulated by the Financial Services Authority.
He also suggested that regard should be had to the guidance ‘Investing in Patients’ a paper provided for staff at the Investment Branch (now abolished) which used to invest on behalf of P before the coming of the MCA.
Kelly Greig, Associate and Head of Trethowans' Private Client Team, commented "Attorneys and Deputies should take proper advice on their duties and obligations in respect of their role to ensure that they act appropriately at all times".