Removing an incapacitated Trustee

Trusts Discussion
1

I Know there are a number of threads on this topic. I just want to make sure that I understand completely.

The incapacitated Trustee in this case has a beneficial interest in the property (an 11% share) held on bare trusts.

Am I right in thinking he can’t be removed via Section 36(1) trustee act because of his beneficial interest? So we have to obtain a court order?

But because he has a beneficial interest can his powers be delegated to his attorney under a Lasting Power of Attorney for Property and Finance, thus avoiding the need to remove him as Trustee? Clients are keen to sell a property in the trust as quickly as possible. He will have to be removed eventually but can his Attorney under an LPA sign for him?

Many thanks

2

In these circumstances the attorney will be authorised to act for their principal in the sale by virtue of s.1 Trustee Delegation Act 1999.

Paul Saunders FCIB TEP

Independent Trust Consultant

Providing support and advice to fellow professionals

3

Thank you Paul. If there is no Lasting Power of Attorney then presumably our only option is to remove him by court application? Just to reiterate he is a beneficiary of a bare trust not an interest in possession or discretionary trust.