Incapacitated Trustee - Transfer of Shares

I would be grateful for comments on the following scenario.

  • There is a trust with two trustees, one of whom is mentally incapacitated.
  • The incapacitated trustee has no beneficial interest in the trust and so can, and will, be easily removed and replaced with another trustee by deed.
  • The trust only holds shares in a private limited company.
  • Due to the operation of s.40(4)© TA 1925 my question is whether it is strictly necessary to obtain a vesting order from the High Court to vest the shares in the names of the new trustee (along with the continuing trustee)?
  • The incapacitated trustee does have a registered Financial LPA and whilst I’m conscious that the scope of such documents do not extend to exercising the trustee functions of a donor, is it a stretch to say that where a donor has already been removed as a trustee, an attorney could sign a STF on the donor’s behalf in respect of these shares as this task is effectively administrative at this point?
  • I should add that the company is not imposing any requirements and is happy to be guided.

Many thanks

Greg Dixon

Gordons LLP