If there is a specific power in the trust for a settlor to remove trustees, does this enable him to remove a trustee with dementia who is also a discretionary beneficiary without reference to the Court of Protection?
David Lewitt
Willpower
I don’t see why not. An incapacitated trustee who is only a discretionary object (ie does not have an interest in possession) can be replaced under the Trustee Act without reference to the Court of Protection anyway.
Diana Smart
Gordons LLP
Hi David
Trustee & Beneficiary
36 (9) Trustee Act 1925 would apply. Cannot be overcome by trust clauses.
Richard Bishop
PFEP
You will need to check the precise terms of the trust as set out in the trust instrument/deed/Will.
Section 36 Trustee Act 1925 provides a number of statutory options for removing/replacing trustees in particular circumstances, although there is some limitation on removing a trustee who has an interest in possession (which sounds like is not the position here, but it is worth checking exactly how the trust operates).
Sections 19 & 20 of TLATA 1996 also have some provisions re removing trustees.
If there is no statutory or express mechanism which will help, then an application could be made to the court to remove/add trustees.
Paul Davidoff
New Quadrant Partners
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