Our client has a brother who suffers from mental health issues and has been sectioned in the past under the mental health act. our client would like to explore the option of adding him in the trust as a vulnerable beneficiary, can be achieved without a deputyship?
Any advise would be great.
A few questions come to mind:
- what trust?
- why do you think you would/might need a deputyship?
Deed of trust for a property matter , as the beneficiary has no capacity would not deputyship be required?
Sorry, you still need to be much more specific. For example “client wants to transfer his wholly owned property into joint names with his brother as tenants in common and make a declaration of trust reflecting this”.
and you don’t need to take any steps to receive a gift but you may, for example, in order to grant tenancies or control a bank accounts to receive rents.
Just because someone has been sectioned it doesn’t necessarily mean he lacks issue specific capacity. If he does not receive certain benefits he may also not meet the definition for vulnerable or disabled.
in essence, the client informs me that he owns the property but his siblings are also entitled to the property (Religious Reasons) and therefore, wants to make a declaration of trust to reflect each beneficiaries share. The issue is whether or not a deputyship would be required for the purposes of putting the vulnerable beneficiary into the declaration of trust or even to benefit from the declaration of trust.
I hope that clarifies and makes sense.
If current owner A wants to make a declaration of trust in favour of A, B and C, he can.
B cannot provide an express indemnity if he does not have capacity so A would be reliant upon his equitable right of indemnity/reimbursement.
There could be more practical problems i.e. if the property was let and B had to appoint an agent and/or submit a tax return, or sold and B could not instruct a solicitor or did not have a bank account to receive the proceeds. B may not be able to make a will to ensure a particular succession to the property.