Q&As

A trust deed reserves power to the settlor to appoint and remove trustees. The settlor is not a trustee of the trust. The settlor has lost capacity and has a registered financial lasting power of attorney (LPA). Can the LPA attorneys exercise the power to appoint and remove trustees?

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Produced in partnership with Naomi O’Higgins of Howard Kennedy
Published on LexisPSL on 30/05/2019

The following Private Client Q&A Produced in partnership with Naomi O’Higgins of Howard Kennedy provides comprehensive and up to date legal information covering:

  • A trust deed reserves power to the settlor to appoint and remove trustees. The settlor is not a trustee of the trust. The settlor has lost capacity and has a registered financial lasting power of attorney (LPA). Can the LPA attorneys exercise the power to appoint and remove trustees?

A lasting power of attorney (LPA) does not provide the attorneys with the power to exercise settlor powers on behalf of the donor who has lost capacity. However, this will not necessarily result in deadlock.

The first question is whether the settlor/donor (P), in fact does have capacity to act, bearing in mind that capacity is:

  1. presumed unless it is established that P does not have capacity, and

  2. function-specific

If P does not have capacity to appoint or remove a trustee, the next step will be to check whether there are alternative provisions in the trust instrument dealing with the appointment of new trustees and/or the removal of existing trustees in the event of the settlor's death or incapacity. If so, the trustees can be appointed or removed accordingly.

In the absence of such provisions in the trust instrument, section 36 of the Trustee Act 1925 (TA 1925) may be of assistance. If there are existing trust

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