Life Plan in trust - trustee lacks capacity

I have a client who is an Attorney for her mother in respect of financial affairs. Mother has unfortunately lost capacity but has a Life Plan written into trust.

The policy provider has advised that client does not have authority under the LPA to act in relation to the trust, which we agree with, and has advised that client needs to prepare a Deed of Appointment and Retirement under Section 36(1) Trustee Act 1925 to remove and replace mother as a trustee.

The provider will not give client the names of the trustees or a copy of the trust deed so that the DOAR can be prepared. How do we go about preparing the document in the absence of knowing who the current trustees are and who has the power to remove/replace trustees?

I’d agree under s.25 TA its not totally clear if the attorney can act as a trustee (in all respects).

However I’d strongly argue with the provider about the request for information about the trust.

I’d formally complian in writing - refer to FSCS for a ruling.

Richard C. Bishop
PFEP

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Not my area of speciality but maybe the client could send the policy provider a SAR request on behalf of her mother.

I don’t know for certain that it would work but it is relatively easy to do so little is lost if they refuse - and you could refer it on to the ICO to rule.

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I refer to Richard’s comment with regard to s.25 Trustee Act 1925.

An attorney under an LPA can only exercise the donor’s trustee functions if s.1 Trustee Delegation Act 1999 applies (essentially where the donor is a trustee of land and has a beneficial interest in that land and the proceeds of sale or the income thereof).

However, a trustee LPA an also be made which complies with s.25 TA 1925, but is subject to the same constraints as any other s.25 power – e.g. limited to no more than 12 months, etc.

Paul Saunders FCIB TEP

Independent Trust Consultant

Providing support and advice to fellow professionals

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This appears to be a violation of the FCA’s consumer duty rules so get a copy of the life office’s complaints procedure and make a formal complaint. Your ultimate arbiter will then be the Financial Ombudsman Service (not the FSCS) if you are not satisfied with their response.