PW v Irwin Mitchell Trust Corporation: The Protected Party’s Best Interests Must Come First
The Court of Protection’s latest judgment reinforces a fundamental principle: a professional deputy’s duty is to the Protected Party, not to the commercial interests of the deputy, their firm or any associated business.
Introduction: A principle that must never be forgotten
The judgment handed down by Her Honour Judge Hilder on 20 October 2026 in Irwin Mitchell Trust Corporation v PW & Anor [2026] EWCOP 53 (T2) is an important reminder of the obligations owed by professional deputies to the people whose property and financial affairs they are appointed to manage.
At the heart of this case lies a straightforward principle: the best interests of the Protected Party must remain the central consideration in every decision a deputy makes.
That principle must apply to every aspect of deputyship, from the management of investments and the appointment of professional advisers to the fees charged, the providers selected and any commercial arrangements entered into on the Protected Party’s behalf.
A deputy cannot justify a decision simply because it is convenient, commercially attractive, consistent with an established internal process or beneficial to the firm providing the service. The relevant question is whether the decision is lawful and genuinely serves the Protected Party’s interests.
Where an arrangement creates a financial benefit for the deputy’s firm, or a connected business, that question requires particularly careful scrutiny.
The judgment is a timely reminder that the interests of the Protected Party must never become secondary to the financial interests of those entrusted with their affairs.
What did HHJ Hilder decide?
The proceedings followed the original judgment in Irwin Mitchell Trust Corporation v PW [2024] EWCOP 16, in which HHJ Hilder concluded that the appointment by Irwin Mitchell Trust Corporation (IMTC), acting as PW’s property and affairs deputy, of Irwin Mitchell Asset Management (IMAM), then part of the same corporate group, breached the rule against self-dealing.
The original judgment made clear that the conflict could not be eliminated by internal procedures, a panel of investment managers, a competitive selection process or the involvement of family members.
The issue returning to the Court in 2026 was what should happen as a consequence of that breach. IMTC sought retrospective ratification of its appointment of IMAM, which would involve the Court waiving PW’s potential claims arising from the breach. The Official Solicitor, supported by the Public Guardian, opposed unconditional ratification.
HHJ Hilder had to balance the advantages of preserving PW’s existing relationship with her deputy against the importance of protecting her potential financial claim.
The Court recognised that PW and her husband valued their relationship with the deputy who had been managing her affairs. It also accepted, on the assumptions agreed for the proceedings, that PW had received investment management services of a reasonable standard at fees that a reasonable and experienced investment manager might have charged.
However, those considerations did not justify requiring PW to abandon her potential claim without appropriate recognition of its value.
The judge therefore concluded that retrospective ratification would be in PW’s best interests only on condition that IMTC paid an amount equal to 60% of PW’s potential claim, calculated using the receipts approach, into her estate.
IMTC was given 21 days from hand-down to confirm whether it would accept that condition. If accepted, the agreed amount must be paid within 28 days of formal hand-down. If the condition is not accepted, the order provides for an application to discharge IMTC as deputy so that PW’s potential claims can be pursued separately.
The Court did not finally determine the value of the underlying claim. Rather, it adopted a conditional solution designed to preserve both PW’s potential financial rights and the possibility of maintaining her existing deputyship relationship.
The judgment is available at Irwin Mitchell Trust Corporation v PW & Anor [2026] EWCOP 53 (T2).
Best interests are not the same as the interests of the professional deputy
The most important lesson from this case extends beyond the particular investment arrangements in question.
A professional deputy is appointed to act for the Protected Party. The deputy is not appointed to generate additional income for their firm, support an associated business or secure commercial advantages through the management of the Protected Party’s assets.
This distinction matters wherever a deputy enters into an arrangement that produces a financial benefit for themselves, their employer or a connected organisation.
Consider arrangements involving referral payments, enhanced administration fees, commissions or other financial incentives. If a deputy or their firm stands to benefit from a decision about which service provider to appoint, the arrangement must be examined carefully against the deputy’s fiduciary obligations and the Protected Party’s interests.
Such arrangements should never be treated as acceptable merely because the service is provided, the paperwork is completed or the fees appear commercially reasonable.
The critical questions are whether the arrangement creates a conflict of interest, whether it has been properly authorised, whether the Protected Party is receiving appropriate value and whether the decision genuinely serves their interests.
An arrangement that increases the income of a professional firm without a corresponding justification in the interests of the Protected Party is difficult to reconcile with the fundamental responsibilities of deputyship. Where the arrangement involves an unauthorised fiduciary conflict, the consequences can be more serious still.
The principle is not that professional firms must never earn fees. Professional deputies and advisers are entitled to be paid appropriately for the work they undertake. The principle is that the Protected Party’s interests must determine the decision, rather than the commercial opportunity available to the professional.
A competitive selection process does not remove a conflict
One of the particularly important features of the original 2024 judgment was the Court’s consideration of the procedures used to select an investment manager.
IMTC relied on a process involving a panel of providers, a competitive selection exercise often described as a “beauty parade”, scoring systems and family involvement.
The Court nevertheless found that the appointment of a connected investment manager gave rise to an actual conflict of interest. The financial connection remained, notwithstanding the procedures used to select the provider.
This is a critical distinction for professional deputies.
A competitive process may help establish which provider offers the most suitable service. It may provide evidence about fees, performance, expertise and value for money. It may also improve the transparency of the decision-making process.
But a process designed to choose the best provider does not, in itself, authorise a deputy to enter into a transaction that breaches the self-dealing rule.
The question of authorisation must be addressed separately.
The original judgment is particularly significant because it demonstrates that a well-documented decision, even one involving apparently robust safeguards, may still be affected by an underlying fiduciary conflict.
For professional deputies, the lesson is to identify conflicts at the outset, avoid them wherever possible and obtain appropriate Court of Protection authority where a conflicted arrangement is proposed. Retrospective ratification should not be treated as a routine substitute for taking the correct steps before entering into an arrangement.
The 2026 judgment: preserving relationships without sacrificing rights
The October 2026 judgment is also important because of the practical solution HHJ Hilder adopted.
The judge did not dismiss the value of the existing deputyship relationship. She recognised that continuity could benefit PW and that changing deputies would cause some disruption.
However, she also gave the greatest weight to the factors against unconditional ratification, including the loss of a potential claim of real monetary value.
The Court’s solution was to make ratification conditional on a payment to PW’s estate. This sought to preserve the existing relationship without requiring PW to give up her potential financial rights without appropriate recognition.
The decision illustrates an important distinction: the Court can take a pragmatic approach to resolving a dispute, but pragmatism must operate within the framework of the Protected Party’s best interests.
It is also significant that the Court did not allow the potential impact on the Court’s or the Office of the Public Guardian’s workload to determine the outcome in PW’s case. The interests of other affected people and the practical consequences of the decision were relevant to the wider context, but they could not displace the individual best-interests assessment.
The judgment also addresses arrangements affecting approximately 260 other people for whom IMTC or individual Irwin Mitchell employees acted as property and affairs deputies and had appointed IMAM as investment manager. An interim scheme involving independent review was authorised for those cases, subject to its terms and further review.
The implications therefore extend beyond one individual appointment. Professional deputies and firms must consider whether comparable arrangements exist elsewhere and whether they require review or appropriate authorisation.
Annual investment reviews: good practice remains essential
There is another important practical point for professional deputies.
I have consistently maintained that an annual review of investments is a sensible and defensible element of good deputyship practice. A deputy should be able to demonstrate that investments have been considered regularly, that they remain appropriate for the Protected Party’s circumstances and that any necessary changes have been properly evaluated.
The Office of the Public Guardian’s Guidance for Professional Deputies supports this approach. Its investment guidance states that deputies should regularly review investments to consider their suitability and whether they should be varied. It also emphasises the importance of considering the Protected Party’s circumstances, future financial needs, life expectancy, risk and the potential consequences of changing investments.
The guidance further states that a deputy must consider their fiduciary duty and act in the Protected Party’s best interests where their own interests and those of the Protected Party are linked, including where an investment is made in the deputy’s business. In such circumstances, the deputy must apply to the Court for authorisation.
Read the OPG’s Guidance for Professional Deputies.
The guidance also refers to the use of competitive selection processes, commonly described as “beauty parades”, in appropriate circumstances. It does not prescribe a universal frequency for repeating such a process.
That distinction matters. The absence of a prescribed annual beauty parade does not remove the need for regular investment reviews, nor does it mean that a deputy should continue with an investment manager without reconsidering suitability, fees and value.
An annual review can provide useful evidence that the deputy has discharged their responsibilities. It should not, however, be confused with a complete answer to a conflict-of-interest problem.
A deputy may review an investment portfolio every year, record its performance and conclude that the investment manager is providing an appropriate service. Those actions may demonstrate sound investment oversight. They do not retrospectively authorise a conflicted appointment or remove the need to address a financial interest that falls foul of fiduciary principles.
Equally, a competitive selection exercise may help identify a suitable provider, but it does not necessarily resolve the underlying conflict.
Good investment governance and proper conflict management are separate obligations. Deputies need to satisfy both.
What should professional deputies do now?
The lessons from PW are practical and should inform the way professional deputyships are managed.
First, deputies should identify potential conflicts before making appointments or entering into financial arrangements. This includes arrangements involving connected companies, referral relationships, commissions, enhanced fees and other financial incentives.
Second, deputies should be able to explain why the chosen provider is appropriate for the Protected Party, having regard to the person’s circumstances, needs, objectives, risk profile and available alternatives.
Third, fee arrangements should be examined carefully. It is not enough to ask whether a fee is customary or whether the service has been delivered. Deputies must consider whether the arrangement is in the Protected Party’s interests and whether any financial benefit to the deputy or a connected business creates a conflict requiring avoidance or Court authorisation.
Fourth, deputies should maintain appropriate records of investment reviews, provider selection, advice received, fee comparisons and the reasons for their decisions. Such records support accountability, but documentation must not be mistaken for a substitute for lawful authority.
Finally, where a conflict cannot properly be avoided, the deputy should consider the need for an application to the Court of Protection before proceeding. The Court’s authority should not be assumed merely because the proposed arrangement appears beneficial or has been used in other cases.
These steps are not simply about protecting professional firms from criticism or reducing the risk of costs disputes. They are about ensuring that the deputyship is administered in accordance with the duties owed to the Protected Party.
Conclusion: the Protected Party must always come first
The judgments in Irwin Mitchell Trust Corporation v PW are a reminder that fiduciary duties are fundamental to the role of a professional deputy.
The 2024 decision established that the appointment of a connected investment manager could breach the self-dealing rule notwithstanding internal selection procedures and family involvement. The 2026 judgment then demonstrated that the consequences of such a breach cannot simply be set aside in the interests of convenience or continuity.
HHJ Hilder’s conditional approach sought to balance PW’s positive relationship with her existing deputy against the importance of preserving her potential financial claim. It was a pragmatic solution, but one firmly rooted in the individual’s best interests.
For professional deputies, the message is clear. Decisions must be made for the Protected Party, not for the commercial benefit of the deputy, their employer or a connected organisation.
Annual investment reviews, competitive selection processes and careful record-keeping remain important aspects of good practice. They cannot, however, be relied upon to eliminate a conflict that requires avoidance or Court authorisation.
Where financial arrangements benefit the professional at the expense of the Protected Party, the deputy’s fundamental duty is called into question.
The Protected Party is not a commercial opportunity. Their assets are not a means of generating additional income for the organisations managing them. Their interests must remain the reason for, and the measure of, every decision made on their behalf.
That is the central lesson of PW: the Protected Party’s best interests must come first, every time.
