Q&As

Does the concept of ‘trustee function’ in section 1 of the Trustee Delegation Act 1999 (TDA 1999) include the functions of a personal representative? If it does not, why not? We are considering the point in the context of section 10(2) of the Powers of Attorney Act 1971. We note that the operation of section 25 of the Trustee Act 1925 is expressly extended to personal representatives, but we cannot see any equivalent provisions in TDA 1999.

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Produced in partnership with Oliver Hilton of Radcliffe Chambers
Published on LexisPSL on 19/03/2018

The following Wills & Probate Q&A produced in partnership with Oliver Hilton of Radcliffe Chambers provides comprehensive and up to date legal information covering:

  • Does the concept of ‘trustee function’ in section 1 of the Trustee Delegation Act 1999 (TDA 1999) include the functions of a personal representative? If it does not, why not? We are considering the point in the context of section 10(2) of the Powers of Attorney Act 1971. We note that the operation of section 25 of the Trustee Act 1925 is expressly extended to personal representatives, but we cannot see any equivalent provisions in TDA 1999.

The general rule is that a trustee or personal representative is not entitled to delegate its powers unless permitted to do so by the instrument that appointed it. So, while for instance it is provided by section 10(1) of the Powers of Attorney Act 1971 (PAA 1971) that a power of attorney in a general form under PAA 1971 shall operate to confer on the donee(s) of the power authority to do on behalf of the donor anything which it can lawfully do by an attorney, PAA 1971, s 10(2) expressly excludes the operation of that rule in respect of ‘functions which the donor has as a trustee or personal representative’.

There are nevertheless statutory exceptions to this. So, as regards the general power of attorney under PAA 1971, s 10(1), the exclusion in PAA 1971, s 10(2) is expressed as subject to section 1 of the Trustee Delegation Act 1999 (TDA 1999) which provides that:

‘The donee of a power of attorney is not prevented from doing an act in relation to (a) land, (b) capital proceeds of a conveyance of land, or (c) income from land, by reason only that the act involves the exercise of a trustee function of the donor if, at the time when the act is done, t

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