Q&As

If a trustee loses capacity does their EPA attorney have power to appoint a new trustee?

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Published on LexisPSL on 04/01/2016

The following Private Client Q&A provides comprehensive and up to date legal information covering:

  • If a trustee loses capacity does their EPA attorney have power to appoint a new trustee?

If a trustee loses capacity does their EPA attorney have power to appoint a new trustee?

Our Practice Note: Trustees—appointment of trustees contains useful background information.

Usually the power to appoint new trustees will be contained in the trust instrument. If there is no express power, new trustees may be appointed under the provisions of section 36 of the Trustee Act 1925 (TA 1925) which creates a hierarchy of categories of people having power to appoint where the original trustee is unable or unwilling to continue in the role (eg due to a lack of capacity). The persons that may appoint a new trustee (in order) are:

  1. the person(s), if any, nominated in the trust instrument

  2. the existing trustees (or their attorney—see below), and if any

  3. the personal representatives of the last or only surviving trustee

TA 1925, s 36 makes limited provision for a donee of an enduring power of attorney created on or after 1 March 2000 to appoint new trustees on their donor's behalf. TA 1925, ss 36(6A) and 36(6B) state:

[(6A) A person who is either—

(a) both a trustee and attorney for the other trustee (if one other), or for both of the other trustees (if two others), under a registered power; or

(b) attorney under a registered power for the trustee (if one)

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