Q&As

Where all trustees have lost capacity, can their LPA attorney(s), in the absence of provisions in the trust instrument, remove and replace them?

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Published on LexisPSL on 21/06/2016

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

  • Where all trustees have lost capacity, can their LPA attorney(s), in the absence of provisions in the trust instrument, remove and replace them?

Where all trustees have lost capacity, can their LPA attorney(s), in the absence of provisions in the trust instrument, remove and replace them?

A power of attorney is a written legal authorisation allowing B (an individual or other legal person) to act on behalf of A (likewise, either an individual or other legal person). B is then able to carry out acts on behalf of A without A being present, and such acts are treated as being the acts of A. For the long-term delegation of a power of attorney, a Lasting Power of Attorney (either over property and financial affairs, or over health and welfare) can be granted, and, subject to the necessary formalities, continues to have effect if A loses capacity. Such a power can therefore be extremely useful if there is a risk that capacity will be lost.

The terms of an LPA can prescribe the powers that can be exercised by B on behalf of A. It may also be restricted to such times as A lacks capacity. It is therefore important to determine at all times what powers

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