Incapacitated Trustee and retirement

Dear all

I have a case where H&W are trustees of a trust fund (cash investment, no property) for minor child who is beneficiary of a legacy under grandfather’s Will. H now has dementia and the financial institution will not accept instructions from W as attorney for H under the LPA, because the Trustee function cannot be delegated under the LPA.

I can see that s36 Trustee Act applied and I’ve found a precedent Deed of Appointment of New Trustee and Retirement.

However, I do still have one query, and sorry if this is obvious. Can W sign the Deed of Appt/Ret (which appoints a new Trustee and retires H) in her capacity as (1) Continuing Trustee and (2) can she also sign as the attorney for H?

Your advice would be greatly appreciated.

Kind regards

Catherine Anderson

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My understanding of s36(1) is that where a trustee is incapable of acting and there is no person nominated in the trust instrument to appoint new trustees, then then the surviving or continuing trustee(s) can appoint a new trustee to replace the incapable (retiring) trustee. Therefore in this case W can replace H with a new trustee and simply sign the Deed in her capacity as continuing trustee. The new trustee will also need to sign but H as retiring trustee does not need to sign. (There should be no issues unless H wishes to remain as trustee.)

Kind regards

Ihsan Ali
I Will Solicitors Ltd

Dear Ihsan

Thank you for taking the time to respond and for your advice. That’s what I was hoping to hear!

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