Has anyone come across a situation where a Declaration of Trust needs to be signed and the owner of the property has lost capacity? The main issue is, can the Attorneys sign on behalf of the Donor to hold a Declaration of Trust of Land?
Any advice or help would be much appreciated.
Hi Tristy,
I assume you are referring to an attorney acting under an LPA who wishes to set up a trust of the donor’s land under which the donor would be the trustee. This would not be allowed unless the following apply as this is a gift (see s.12 MCA 2005 which sets out the gift making powers of an attorney acting under an LPA):
the gift is to a person related to or connected with the donor on a customary occasion, or it is to a charity to whom the donor made or might have been expected to make gifts; and
the gift is reasonable taking into account the circumstances and the size and value of the donor’s estate.
If the gift does not fall within the exception, one needs to apply to the Court of Protection and ask them to authorise the gift under s.23(4) MCA 2005.
Yours the ever faithful Legal Beagle