Q&As

Where the sole surviving trustee of a trust has lost capacity and there is nobody else with the power to appoint new trustees, does the property and affairs deputy of the incapacitated trustee have power to appoint new trustees and/or do the executors of a deceased trustee have any powers to make such an appointment?

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Produced in partnership with Lynne Counsell of 9 Stone Buildings
Published on LexisPSL on 22/11/2018

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:

  • Where the sole surviving trustee of a trust has lost capacity and there is nobody else with the power to appoint new trustees, does the property and affairs deputy of the incapacitated trustee have power to appoint new trustees and/or do the executors of a deceased trustee have any powers to make such an appointment?
  • Powers to appoint new trustees
  • Powers of the deputy
  • Summary

Where the sole surviving trustee of a trust has lost capacity and there is nobody else with the power to appoint new trustees, does the property and affairs deputy of the incapacitated trustee have power to appoint new trustees and/or do the executors of a deceased trustee have any powers to make such an appointment?

Powers to appoint new trustees

There are various statutory provisions applicable to the appointment of new trustees:

  1. section 36(1) of the Trustee Act 1925 (TA 1925)—this provides that where a trustee is dead or is incapable of acting, (a) the persons nominated in the trust instrument, or (b) if there are no such persons, the surviving or continuing trustees or the personal representatives (PRs) of the last surviving or continuing trustee may, by writing, appoint one or more persons to be trustee(s) in place of the deceased or incapable trustee. If the matter is not contested, TA 1925, s 36(1) does not require an application to court

  2. TA 1925, s 41—this provides that the court may, whenever it is expedient to do so, appoint a new trustee or trustees if it is inexpedient, difficult or impracticable to do so without the assistance of the court. The section provides that, in particular, the court may make an order appointing a new trustee in substitution for a trustee who lacks capacity to exercise

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