Creation of trusts—by the court
Creation of trusts—by the court

The following Private Client guidance note provides comprehensive and up to date legal information covering:

  • Creation of trusts—by the court
  • Persons lacking mental capacity
  • Orders for settlement of property in proceedings for ancillary relief
  • Orders under the Inheritance (Provision for Family and Dependants) Act 1975

Persons lacking mental capacity

Settlements, gifts and variation of trusts

Section 18 of the Mental Capacity Act 2005 (MCA 2005), Court of Protection Rules 2017 (SI 2017/1035) and Court of Protection Practice Direction 9E apply to:

  1. the settlement of any property belonging to a person who lacks capacity (P)

  2. the sale, exchange, charging, gift or other disposition of P's property

In relation to settlements, gifts and variation of trusts, a deputy may not be given powers with respect to:

  1. the settlement of any of P's property, whether for P's benefit or for the benefit of others

  2. the exercise of any power (including a power of consent) vested in P, whether beneficially or as a trustee or otherwise

For further guidance, see: Making lifetime gifts and settling property on behalf of P, Property transactions involving protected persons and Making an application to the Court of Protection.

Permission

A deputy appointed by the Court of Protection for a person to whom an application relates does not need permission to make an application for the settlement of any property belonging to P, whether for P's benefit or for the benefit of others.

The circumstances in which permission is or is not required to make an application to the court for the exercise of powers under MCA 2005 are set out in: Court of Protection—permission to apply

In