I have a situation where one of three trustees of a property who is also the original settlor has lost capacity so there are two continuing trustees. The incapable trustee has a life interest in the property and the trust deed states that no sale of the property is to take place without the consent in writing of the settlor. The deed is silent as to the power to appoint a new trustee.
The incapable trustee is now in permanent residential care and the two capable trustees want to sell the property. Clearly I need to make an application to the Court of Protection presumably under s.36 Trustee Act 1925 but I am unsure as to whether I need to apply to appoint a replacement for the incapable trustee or whether I can just request the incapable trustee to be removed given that there are two continuing trustees.
I don’t agree with the concentration on incapable trustees, nor that the link forwarded is relevant. The problem described is that of the loss of capacity of the settlor, and power is said to have been reserved to him/her which I take it is in his/her personal capacity, (not as trustee) to consent to a sale. I don’t know the answer to the problem, but as I see it the settlor must exercise his/her power in his or her personal capacity, for which I imagine the appointment of a Deputy is required.
I agree that the incapable trustee must be replaced using the power in section 36 Trustee Act 1925. However, because that trustee has an interest in possession section 36 (9) necessitates an application the Court of Protection to replace the incapable trustee.
subsection (9). The next question is consent. If there is a Lasting Power of Attorney then I wonder if the attorney can consent? However, as you will need to apply to the Court of Protection why not apply for an order consenting to the sale at the same time?