Over in the
charity sector last week, the England and Wales High Court passed down a
judgment to allow charity trustees to take environmental ideals in to account
when investing assets. Interestingly, trustees are allowed to do so even where
the returns are to be lower than other non-environmentally friendly
decisions.
Two trustees of charities, with
the aim of improving the environment and relieving poverty, brought the case to
clarify the extent of their investment discretion. The trustees sought to decipher
whether they could avoid investing in profitable activities which they believed
could conflict their environmental purposes.
The judgment now poses the
question whether the Court of Protection will follow suit and allow Deputies
and Attorneys to act in a similar way. This would introduce the ability to
follow P’s wishes beyond just acting in their financial interests and ensuring
any strong environmental beliefs are also followed.
However, the contrary viewpoint
is that this may give too much room for Deputies to make moral decisions, which
could see them stray from their role. The nature of moral decisions is of
course that they are subjective therefore this is likely to create uncertainty
about whether the stronger moral or financial outcome should prevail when
making investments.
If introduced, this would bring
another dynamic to the role of a Deputy/Attorney and the argument could develop
for this to be introduced for all strong viewpoints. This would then open the
floodgates and murky the waters for answering the question “what is P’s best
interests?” – honouring their beliefs or maximising assets.
It will be interesting to see
whether the decision in Butler-Sloss v Charity Commission is mirrored in the
Court of Protection. Follow our @RamsdensCoP team on Twitter to stay up-to-date
with further news updates.
For more information call our Court of Protection team to discuss your options on 01484 821 500 or email [email protected] to book a free information session at any of our offices.
The above article is for illustrative purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any part of the information given.
Furthermore, the information contained is accurate and up to date as of the date of publication. Readers should be aware that legislative frameworks may have been amended since the original date of publication.