Can an attorney act for a settlor?

Trusts Discussion
1

I have sight of a lifetime trust dated March 2016 purportedly made by a Settlor “by his attorney” and executed in his name by her. She is also a trustee. I have not investigated which type of power she relies upon, but is this valid?

An attorney under a registered LPA can buy or sell property, but surely a transfer into trust is a gift, and not a seasonal or customary one?

Does s1(4)(a) Law of Property (Misc Prov) Act 1989 assist her?

Thanks

Iain Cameron
Acer Legal

2

I can’t see why it wouldn’t be perfectly valid if under a “regular” power. It definitely wouldn’t be valid if made under an LPA for the reason you give (there is a Jersey case confirming this Re CSI Trust (2004) if you need it)

Andrew Goodman
Osborne Clarke LLP

3

Under what authority did the attorney sign the lifetime trust?

Was it under their own cognisance, or upon the specific instruction of the intending settlor?

If the latter, they are not making the gift – they are merely dealing with an administrative activity.

I suggest there is a case for further investigation. Is the settlor still alive and capable of confirming the arrangements at the time, and their intention?

Paul Saunders FCIB TEP

Independent Trust Consultant

Providing support and advice to fellow professionals