Q&As

The deceased created a life interest trust over their share of a property. One of the trustees of the life interest trust is the life tenant, who has now lost capacity but has a Property and Affairs Lasting Power of Attorney. The trust has no express power of appointment or removal of trustees. Can the life tenant's attorneys and the other trustees sell the property or does the life tenant trustee need to be removed first? If they need to be removed, how can this be done?

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Produced in partnership with Lynne Counsell of 9 Stone Buildings
Published on LexisPSL on 16/04/2021

The following Private Client Q&A produced in partnership with Lynne Counsell of 9 Stone Buildings provides comprehensive and up to date legal information covering:

  • The deceased created a life interest trust over their share of a property. One of the trustees of the life interest trust is the life tenant, who has now lost capacity but has a Property and Affairs Lasting Power of Attorney. The trust has no express power of appointment or removal of trustees. Can the life tenant's attorneys and the other trustees sell the property or does the life tenant trustee need to be removed first? If they need to be removed, how can this be done?
  • Incapacitated trustees
  • Summary

The deceased created a life interest trust over their share of a property. One of the trustees of the life interest trust is the life tenant, who has now lost capacity but has a Property and Affairs Lasting Power of Attorney. The trust has no express power of appointment or removal of trustees. Can the life tenant's attorneys and the other trustees sell the property or does the life tenant trustee need to be removed first? If they need to be removed, how can this be done?

We have assumed that

  1. the Property Power of Attorney is a Property and Affairs Lasting Power of Attorney (LPA)

  2. the attorneys and trustees are different people

Incapacitated trustees

While an attorney under a Property and Affairs LPA has wide powers to deal with the donor’s assets and investments, including their interest in any property, the general principle is that they cannot act on behalf of the donor in the donor’s capacity as trustee. In such circumstances, it is usually necessary to remove and replace the incapacitated trustee.

In the absence of a provision in the trust instrument for doing so, this would be under one of the following statutory powers:

  1. section 36 of the Trustee Act 1925 (TA 1925)—TA 1925, s 36(1) provides that where a trustee is unfit or incapable of acting, the surviving or continuing trustee(s) may in writing

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