Appointment of trustees

By Tolley

The following Trusts and Inheritance Tax guidance note by Tolley provides comprehensive and up to date tax information covering:

  • Appointment of trustees
  • The office of trustee
  • Who can act as trustee?
  • Number of trustees
  • Initial appointment of trustees
  • Subsequent appointment of trustees

The office of trustee

The trustees’ role is to hold the assets of the trust for the benefit of the beneficiaries. To assist the trustees in this task, they are given extensive powers and wide-ranging discretion to exercise those powers. The trustees’ powers derive principally from the trust deed, but are also supplemented by additional powers established in both statute and in case law. See the Trustee’s powers and duties guidance note.

This guidance note deals with the appointment of trustees. The removal and retirement of trustees is covered in the Changing trustees guidance note.

Who can act as trustee?

The role of a trustee is not one that should be undertaken or imposed lightly. The very nature of the word implies that he or she must be of the utmost trustworthiness, as there are significant fiduciary duties imposed on trustees.

But, from a strictly legal point of view, anyone who has capacity to hold property can act as a trustee. This means that minors cannot be appointed as trustees.

Law of Property Act 1925, s 20 (subscription sensitive)

People who lack the mental capacity to exercise the functions of a trustee also cannot act, and should either not be appointed in the first place or should be replaced if they lose capacity. There are, of course, many levels of unsoundness of mind that might render a person unfit to act as a trustee, and reference should be made to the Mental Capacity Act 2005, ss 2 and 3 (subscription sensitive) in particular. These sections provide that a person lacks capacity in relation to a matter if, at the time, he is unable to make a decision for himself in relation to the matter because of a permanent or temporary impairment of, or a disturbance in the functioning of, the mind or brain. A person

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