A trustee and beneficiary (A) made a lasting power of attorney (P&FA) and then later lost capacity.
A second trustee (B) could remove and replace him but it would require the leave of the COP under s.36(9).
The Trust (in fact a SSAS) provides that a trustee can retire unilaterally by giving notice to his co-trustees.
If A lacks capacity to make the decision himself, could the attorneys under the LPA give notice to bring about his retirement on the basis this is a personal act rather than the exercise of a fiduciary power?
My gut says no but I cannot find anything definitive and it would save a lot of time/costs involved in a COP application. An appointment of trustees is a fiduciary act, and I suspect a retirement could be a breach of trust where it is carried out in the knowledge that the continuing trustees will carry out a breach of trust, but I have been unable to find anything that says a simple retirement is or isn’t a fiduciary act.
Osborne Clarke LLP