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Featured Private Client content

Notaries and notarisation—notarisation

The principles of the notarial act are that it is:•an act of the notary and not of the parties named in the document•a record of a fact, event or...

Creation of trusts—blind trusts

What is a blind trust?A blind trust is a trust that is aimed at preventing conflicts of interest arising. Usually, the settlor and beneficiary of the...

Nature and classification of trusts—the three certainties

CertaintyIn order for a settlor to create a private express trust the three certainties must be present, namely:•certainty as to the intention of the...

The meaning of relevant property

The term 'relevant property' defines a category of trust property which is subject to a special regime for inheritance tax (IHT). As described in...

Practice notes

Capacity to litigate

On the face of it, there would appear to be no specific impediment, if there is no reason to suppose that a person is without capacity, in them...

9th Nov

Practice notes

Offshore trusts—offshore income gains (OIGs)

Offshore income gains (OIGs) are gains realised on the disposal of interests in offshore funds which are either:•non-distributor offshore funds, or...

9th Nov

Practice notes

Trust disputes—sham trusts

The issue of sham is most likely to be raised by the settlor's creditors or former spouse if the settlor is involved in matrimonial proceedings, who...

9th Nov

Practice notes

What is an offshore trust?

A trust is formed either by lifetime gift or on death when a person (the settlor) transfers assets to another person or persons (the trustees) to hold...

Produced in partnership with Mourant Ozannes and Carey Olsen 12th Jan

Practice notes

Beddoe applications

When trustees are engaged in trust litigation, issues often arise as to how their litigation costs are to be funded. A Beddoe application is the best...

Produced in partnership with Kate Davenport QC of Outer Temple Chambers and Adele Isaacs of Bankside Chambers 12th Jan

Practice notes

Bermuda trusts

This Practice Note outlines Bermuda trust law and focuses upon its unique features and recent reforms, such as Bermuda's regime for private trust...

Produced in partnership with Vanessa Lovell Schrum and Caljonah Smith of Appleby, Bermuda 12th Jan

Practice notes

Cayman Islands STAR trusts—common uses

This Practice Note provides guidance on Cayman Islands STAR trusts. For general information about the Cayman Islands, see Practice Note: Private...

Produced in partnership with Mourant Ozannes and Carey Olsen 12th Jan

Practice notes

Trust disputes—court jurisdiction and procedure

Trust litigation has been classified as being of three types:•a dispute as to the trusts on which trustees hold the subject matter of the settlement•a...

9th Nov

Practice notes

Trustees—power of advancement

Where a beneficiary either:•is a minor (ie under the age of 18) and unmarried or•has attained majority or has married under that date but is required...

9th Nov

Practice notes

Termination of trusts—methods of termination

Duration of a trustThe duration of an express trust is subject to the restrictions imposed by the rules against remoteness of vesting and against the...

9th Nov

Practice notes

Termination of trusts—beneficiaries

Duty to distribute to the correct beneficiariesOn the termination of the trust, the trustees are under a duty to distribute the trust assets to the...

9th Nov

Precedents

Deed of appointment terminating discretionary trust

This Deed of Appointment is made on [date] by [trustee] of [address] and [trustee] of [address] (the Trustees).Background(A)This Deed is supplemental...

9th Nov

Practice notes

Situs of assets for succession and IHT

When you advise an individual on cross-border issues or offshore tax planning, it is important to establish the 'situs' (ie location) of the assets...

9th Nov

Precedents

Partial deed of revocation of lasting power of attorney

This partial deed of revocation is made on [date] by [donor] of [address].1I granted a Lasting Power of Attorney for [Financial Decisions/Health and...

9th Nov

Practice notes

Liferent trusts—Scotland

Liferent trustsA liferent trust (or trust liferent) is a trust which, when settled, confers a use and income benefit, or both, in the trust property...

Produced in partnership with Peter Murrin of Turcan Connell 12th Jan

Scottish Law

Practice notes

UK taxation of offshore trusts—inheritance tax

An offshore trust is any non-UK resident trust. The liability of trustees of an offshore trust to UK inheritance tax (IHT) is not dependent on the...

Produced in partnership with Jenny Wilson-Smith and Emma Haley of Boodle Hatfield 12th Jan

Most recent Powers of attorney and advance decisions content

Practice notes

Business and commercial LPAs

A business lasting power of attorney (BLPA) allows the donor to appoint an attorney to make decisions concerning their business interests either when...

Produced in partnership with Craig Ward, MSc BA(Hons) TEP MBPsS CertCouns of Craybeck Law 15th Jan

Practice notes

LPA precedent instructions and preferences—Health and care LPAs

The precedents in this document are based on those found in Part I, Chapter 15 of Cretney and Lush on Lasting and Enduring Powers of Attorney.This...

15th Jan

Practice notes

EPAs—introduction

The creation of an enduring power of attorney (EPA) has not been possible since 1 October 2007 but there are many still in existence, either being...

15th Jan

Practice notes

LPAs—revocation and disclaimer

A Lasting Power of Attorney (LPA) can be brought to an end in one of the following ways:•revocation by the donor•disclaimer by the attorney•revocation...

Produced in partnership with Victoria Mahon De Palacios of Wedlake Bell 15th Jan

Practice notes

Advance decisions

BackgroundThe Mental Capacity Act 2005 (MCA 2005) and its accompanying Code of Practice (the Code) make provision in relation to advance decisions....

15th Jan

Practice notes

Some dos and don'ts for completing LPAs

Every month the Office of the Public Guardian (OPG) receives applications for registration of lasting powers of attorney (LPAs) where they have to...

15th Jan

Practice notes

Capacity to create or revoke an LPA

Lasting powers of attorneyLasting powers of attorney (LPAs) were created by the Mental Capacity Act 2005 (MCA 2005) and, apart from the fact that the...

15th Jan

Practice notes

LPA precedent instructions and preferences—Financial and Health and Care LPAs

The precedents in this document are based on those found in Part I, Chapter 15 of Cretney and Lush on Lasting and Enduring Powers of Attorney.This...

15th Jan

Practice notes

International issues relating to the protection of vulnerable adults

Hague Convention XXXV on the International Protection of Vulnerable AdultsThe Hague Convention XXXV on the International Protection of Vulnerable...

15th Jan

Practice notes

LPA precedent instructions and preferences—Financial LPAs

The precedents in this document are based on those found in Part I, Chapter 15 of Cretney and Lush on Lasting and Enduring Powers of Attorney.This...

15th Jan

Practice notes

EPAs—attorney's duties and powers

Even though enduring powers of attorney (EPA) can no longer be created, they will be available for use and be subject to the law for some time yet....

15th Jan

Q&As

X and Y own a property jointly, Y has lost capacity and X's capacity is diminishing, X made a Property and Financial Affairs Lasting Power of Attorney naming A as their attorney. B has been appointed as Y's deputy for Property and Financial Affairs. Who is authorised to appoint a new trustee to stand in Y's place as property trustee to authorise the sale of the property? Is A, as X's attorney, authorized to take this step? Can B, as Y's deputy be appointed as the new trustee? Can an application for a new trustee as described above be started before the Court of Protection has issued the order naming B as Y's Deputy?

The opening paragraph of the question specifies that B has been appointed as Y's deputy, but the final paragraph indicates that B has not yet been...

15th Jan

Practice notes

Execution formalities—under a power of attorney

This Practice Note provides practical guidance on the proper execution of simple contracts and deeds by third party individuals or corporations...

15th Jan

In-house

Q&As

A is named as sole executor with the provision that, if A is unable or unwilling to act, then B should be appointed to act instead. A has lost capacity but has attorneys appointed under a valid financial lasting power of attorney. In these circumstances, can A’s attorneys renounce probate on A’s behalf, leaving B to step in to handle the administration of the estate?

Mental incapacity of executorMental capacity is a ground upon which an executor can be excluded from probate (see Evans v Tyler (1849) 163 ER 1266 at...

Produced in partnership with Lynne Counsell of 9 Stone Buildings 14th Jan

Practice notes

EPAs—registration procedure

The whole premise of an enduring power of attorney (EPA) is that, unlike an ordinary power, it can be used after the donor has ceased to have mental...

14th Jan

Practice notes

Data protection obligations for attorneys and deputies

The UK’s data protection provisions as from 31 December 2020In the UK from 11pm on 31 December 2020, revised data protection provisions came into...

Produced in partnership with Craig Ward, of Lundie, of Craybeck Law 13th Jan

Q&As

Is it possible for an attorney under a lasting power of attorney (LPA), to make an application to have the LPA amended to add a further attorney where the LPA is registered and the donor has lost capacity?

It may not be possible to add an attorney to a lasting power of attorney (LPA) once it's been registered with the office of the public guardian....

11th Jan

Q&As

An enduring power of attorney appoints two attorneys, A and B, but it was not dated by A. It was sent to the Office of the Public Guardian for registration, who advised that the appointment of A cannot take effect, so that only B is appointed. What practical solutions are there to rectify the position?

It is assumed for the purposes of this Q&A that the enduring power of attorney (EPA) provided for the attorneys to act jointly and severally, since...

Produced in partnership with Howard Smith of Radcliffe Chambers 8th Jan

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.

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...

Produced in partnership with Oliver Hilton of Radcliffe Chambers 8th Jan

Q&As

Where a donor under a power of attorney has died and the beneficiaries of the donor’s estate believe that the attorney was using the donor’s funds for their own benefit during the donor’s lifetime, what type of civil claim can be brought against the attorney (eg unjust enrichment, restitution)?

An attorney’s ability to make payments to themselves under a simple power of attorney (for example, in relation to a bank account) will be governed by...

Produced in partnership with Thomas Watts of Charles Russell Speechlys LLP 8th Jan