I act in a matter where I am applying to the Court of Protection to make an order for leave for a continuing trustee of a property to appoint a new trustee to replace the incapable trustee pursuant to s.36(9) Trustee Act 1925.
The current trustees are a husband and wife however wife has lost capacity. Husband wants to sell (and is applying for deputyship separately together with his two sons) and in the circumstances the Court of Protection must give him leave to appoint a new trustee. Husband wants to appoint one of the sons.
However when preparing the witness statement which must include the information required by section 5 of Practice Direction 9F I am concerned re 5(f) which states: “if there is only one continuing trustee, the applicant must confirm that both the trustee and the proposed new trustee have not made an enduring power of attorney or a lasting power of attorney in favour of the other party”
The husband has made a LPA appointing the two sons. Does this mean that he cannot appoint one of the sons as trustee under s.36(9)? I can find no other authority or commentary on this point and would be grateful if any forum members could provide some clarification.