Mrs was appointed as executor and trustee in late husbands Will along with son and daughter. Mrs has lost capacity, with no POAs or Deputy. Son and daughter took and Grant with power reserved to Mrs.
The Will contains LIT for Mrs.
Mrs has done nothing to accept the role of trustee, she doesn’t have the capacity to do so and she didn’t prove the Will.
Do we need her to disclaim/apply to the COP for them to do so on her behalf? Is a disclaimer necessary? Or is it simply that she isn’t a trustee because she hasn’t accepted the role? If she had a POA could they disclaim on her behalf?
s.36 of the Trustee Act would have allowed the son and daughter to remove the mother due to lack of capacity, however, as she is also a life tenant, s.39 (I believe) means that an application to the court would be needed. I’m not sure it is enough to say she hasn’t ‘accepted’ the role - I may be corrected.
Sarah - perhaps clutching at straws but you do not specify details of the appointment clause in the will [and/or codicil]. I have seen many which differ from the old “executors and trustees” model, eg “A B & C as Executors” and “those who prove … as Trustees”, which might be of assistance?
Otherwise I fear that an application to the CoP will be required, perhaps more evidence that reform in that area is overdue …
Thank you both, @mullenky@kamsamji
It is an old style appointment in the Will unfortunately.
Any thoughts around whether a POA could disclaim on her behalf?
No sadly you will need a Court Order as a POA does not extend to trustee matters and you have to give notice to the COP if the trustee has an interest in the trust S36(9) TA 1925
if an executor or trustee wishes to appoint an attorney they can under S25 Trustee Act 1925 for up to 12 months but they have to have capacity to do this and again I would be reluctant for a trustee attorney to sign any Deeds for dispositive matters as it usually relates to the admin side of things.
Whilst I agree that a CoP application will be required in these circumstances, I question the inference with regard to a s.25 power of attorney being limited to administrative aspects.
My understanding of s.25 is that the powers/functions delegated by such a power are without limit other than any limitation contained within the trust instrument or the power itself. The attorney can therefore participate in all decisions of a dispositive nature, not merely administrative aspects. An attorney may even act to retire their “principal”.
The above is, of course, subject to the trustee donor themselves being mentally capable of making the decisions in question (unless the power is in the form of a registered lasting power which also complies with the specific requirements of s.25).
Paul Saunders FCIB TEP
Independent Trust Consultant
Providing support and advice to fellow professionals