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.
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 āincapableā 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 āincapableā 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
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).
Paul and Andrew make good points - ādiedā is not āgood draftingā and the ātimeā point by Andrew is valid.
Below is adapted for terminating Directors appointments that we use on every company constitution.
1.0 Termination of Trusteeās 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.