We are dealing with a standard discretionary trust created by Deed of Variation of a Will. The settlor (the original beneficiary under the Will) has the power to appoint new trustees during her lifetime. Following the death of her husband she has been the sole trustee for the last few years, but she now lacks capacity. She appointed her daughter as her attorney under an EPA, which was registered in 2014.
The daughter and her mother are both members of the discretionary class of beneficiaries, and there are currently no other members of the class, other than unnamed charities. The mother as settlor has the right to add beneficiaries to the class.
The power to appoint new trustees does not seem to be a fiduciary power, but I can find no authority as to whether this power can be exercised by an attorney under an EPA. The act states that an EPA authorises the attorney to do anything that an attorney can lawfully do by an attorney.
If the attorney can appoint new trustees, they would then propose to remove the mother as a trustee at the same time, on the grounds of her incapacity, under s36 of the Trustee Act 1925.
Can anyone help, as the alternative would seem to be an application to the Court.
Lee Bolton Monier-Williams