The Official Solicitor will be asked to represent the patient for the purposes of the application and, depending upon the complexity of the case, an attended hearing may be required. Where the amount of the award is below 30,000.00, a simplified procedure is available. In suitable cases, the Court of Protection may be prepared to deal with the application without asking the Official Solicitor to represent the patient and without requiring an attended hearing. However, there are procedures whereby an award of damages can be settled, by consent, in trust for the patient as part of the terms of compromise of the action between the plaintiff and the defendant, with the approval of the High Court, in circumstances where the award never becomes the absolute property of the patient. The Court of Protection will also need to consider what directions should be given as to other assets which may need administration, which may involve the appointment of a receiver.
Bare trusts are generally more straightforward.
Normally, the Court of Protection will only approve the creation of a trust if this will result in some immediate and substantial benefit to the patient which will not accrue if the funds simply remain under a receivership. Also, if monies have been specifically received by the patient which will pay for all future care, these monies should generally remain available for that purpose. It is not to be assumed that time is of the essence, so far as creating a trust is concerned. It is now clear that it is not necessary to set up a trust as soon as the award is received. Provided the funds attributable to the personal injury compensation have been kept separate from other assets and remain identifiable, a trust can be set up at any time that the advantages to the patient of doing so become apparent.