Powers of LPA Attorney re Trusts

  1. I understand an attorney under a registered LPA cannot act in place of a donor as a trustee, or at least not after 12 months from when the power was signed. My question is whether the attorney can act on behalf of the donor as settlor of the trust, where said settlor has the express power to remove and appoint trustees and he can argue he is acting in the best interest of the donor.? I can see it might ring alarm bells if the attorney then appointed himself as sole trustee.

  2. Can an attorney, acting on behalf of the beneficiary of a trust, ask for a statement of trust accounts, perhaps in order to deal with tax affairs or estate planning?

Iain Cameron
Acer Legal

With regard to Iain’s posting, an attorney under an LPA can only stand in the trustee’s shoes if the function being performed is permitted under s.1 Trustee Delegation Act 1999 (TDA), or the power itself complies with s.25 Trustee Act 1925. There is no 12 month limitation where the TDA is engaged.

Otherwise, with regard to item 1 there seems no clear consensus as to whether the attorney can exercise the powers of their principal to appoint or remove trustees. It seems to depend upon whether the “adviser” views the power as fiduciary or personal to the principal. Maybe there is a judicial decision tucked away somewhere that might be of help.

With regard to item 2, at the beneficiary’s alter ego they should be able to have their principal’s entitlement to access trust documents, etc., provided they are using them for the benefit of their principal.

Paul Saunders FCIB TEP

Independent Trust Consultant

Providing support and advice to fellow professionals

  1. Not sure. There is definitely dicta that a protector exercising those exact same powers is a fiduciary (by default) but that wouldn’t necessarily hold true for a settlor. The position may be improved if there is anything in the trust deed providing that the settlor’s right is a personal one (as you often find in offshore trusts).
  2. I would definitely think so as it solely concerns the personal interests/rights of the beneficiary (and I can’t think of any argument to the contrary).

Andrew Goodman
Osborne Clarke LLP