I am dealing with a family charity trust. There are two trustees, husband and wife. Husband would like to retire his wife and appoint their son in her place. Unfortunately, the wife has wavering mental capacity. Does an application to the Court of Protection need to be made to retire and appoint in these circumstances?
According to the MCA guidance notes
Whenever the term ‘a person who lacks capacity’ is used, it means a person
who lacks capacity to make a particular decision or take a particular
action for themselves at the time the decision or action needs to be taken.
Wavering capacity may be that she cannot act as a trustee but may have enough capacity to retire as a trustee.
The principles behind the MCA may be of some guidance.
The ﬁve statutory principles are:
A person must be assumed to have capacity unless it is established that
they lack capacity.
A person is not to be treated as unable to make a decision unless all
practicable steps to help him to do so have been taken without success.
A person is not to be treated as unable to make a decision merely
because he makes an unwise decision.
An act done, or decision made, under this Act for or on behalf of a
person who lacks capacity must be done, or made, in his best interests.
Before the act is done, or the decision is made, regard must be had
to whether the purpose for which it is needed can be as effectively
achieved in a way that is less restrictive of the person’s rights and
freedom of action.
I suggest you review s.36 Trustee Act '25 - I have used this several times before to remove incapacitated trustees. However, I have never sought to rely on it for a charitable trust and it may be useful to refer to the Commission for guidance.
Thank you Andre, your guidance is much appreciated. This was my first post to the group. The other issue is that as the Trust was set up over 50 years ago, the client no longer has the original Trust documentation. I have a copy which is very faint and a typed transcript. I have been able to locate the trust details at the Charity Commission. I have also tried the SRA but the law firm that created the document has long since closed down. I will also try the bank to see if they have the original deed. Any other ideas on trying to locate the original paperwork?
Pending locating the original trust instrument, if at all, consideration might be given to the husband trustee executing a statutory declaration confirming that the “faint” copy is a copy of the original. An additional schedule might be added to such declaration being a freshly typed, and certified, copy of the “faint” copy.
Were the husband and wife the original trustees? If not, the firm that acted at the time of the change of trustees might have retained the original.
Also, whilst unlikely in view of the age of the charity, HMRC might have a copy.
36 Power of appointing new or additional trustees.
(1)Where a trustee, either original or substituted, and whether appointed by a court or otherwise, is dead, or remains out of the United Kingdom for more than twelve months, or desires to be discharged from all or any of the trusts or powers reposed in or conferred on him, or refuses or is unfit to act therein, or is incapable of acting therein, or is an infant, then, subject to the restrictions imposed by this Act on the number of trustees,—
(a)the person or persons nominated for the purpose of appointing new trustees by the instrument, if any, creating the trust; or
(b)if there is no such person, or no such person able and willing to act, then the surviving or continuing trustees or trustee for the time being, or the personal representatives of the last surviving or continuing trustee;may, by writing, appoint one or more other persons (whether or not being the persons exercising the power) to be a trustee or trustees in the place of the trustee so deceased remaining out of the United Kingdom, desiring to be discharged, refusing, or being unfit or being incapable, or being an infant, as aforesaid.