We are dealing with an estate in which one of the executors and trustees predeceased the testator and the other (the surviving spouse) has lost capacity.
The Will includes a NRB discretionary trust and life interest in favour of the surviving spouse.
The Grant has been issued to the attorneys of the surviving spouse.
There are no express powers in the Will regarding the removal and appointment of trustees. Looking at s36(1) of the TA 1925 it looks like we need to apply to the Court of Protection as she is entitled in possession. The surviving spouse has moved into residential care and the family want access to capital. Is the application to the COP the correct and only route to remove the incapable trustee and appoint a new trustee(s) in her place?