Provision for a trustee who losses capacity to be treat as being dead / having died

Hi, I am trying to find some wording to use for a settlement / Will to include a provision that a trustee who loses capacity is to be treated as having died / as being dead. Can anyone assist? By including this power an application to the CoP to replace a trustee would not then be required.

Thank you
Vicki Chant
Lester Aldridge LLP

Following … I would be interested to know if this is indeed possible

Deborah Wise

I recall having seen a precedent providing for a trustee without capacity to be removed by the other trustees, but not one that deems the “incapable” trustee to be dead.

I understand that if the provision is appropriately worded, it can avoid the need for the Court of Protection to become involved.

I would be wary of using a provision that deems the “incapable” trustee to have died, as this could have unexpected implications for other provisions within the trust instrument

Paul Saunders FCIB TEP

Independent Trust Consultant

Providing support and advice to fellow professionals

1 Like

Just popping in to say that a deeming would create horrible uncertainties as few people lose capacity on a determinable date and (as you know) capacity can fluctuate over a long period before observers would agree that it has been lost (at which point the individual may still believe they are fine).

Andrew Goodman
Osborne Clarke LLP

1 Like

Would you not rely on s36(1) where no CoP application is required? Assuming that you have another compos mentis trustee, of course.

Best wishes

Rose Macfarlane
Irwin Mitchell LLP

Hi Vicki,

Paul and Andrew make good points - ‘died’ is not ‘good drafting’ and the ‘time’ point by Andrew is valid.
Below is adapted for terminating Directors appointments that we use on every company constitution.

1.0 Termination of Trustee’s appointment

1.1. A person ceases to be a trustee as soon as:

a) by virtue of any provision of the [Act of parliament] or is prohibited from being a trustee by law.

b) a registered medical practitioner who is treating that person gives a written opinion to the other trustees [named below] stating that that person has become physically or mentally incapable of acting as a trustee and may remain so for more than three months.

Richard Bishop

Thank you to everyone who has commented on this, your comments have been really helpful. If this is indeed possible I will post again.

Vicki Chant
Lester Aldridge LLP