We have been having a debate in the office regarding whether or not an attorney can carry out (or instruct an agent to carry out) a trust registration for a sole trustee who lacks capacity. HMRC’s guidance is slightly bonkers in that they assume that a trustee will never be in situ if they have lost capacity. However there are plenty of trustees of land out there whose attorneys are acting for them quite happily and wouldn’t want or need to remove them as a trustee of a property in which they also have a beneficial interest. The trust of land still needs to be registered however where third parties have beneficial interests in the property as well. Many conveyancing practices require evidence of registration prior to transferring the title, so if they are looking to transfer to new trustees to remedy the situation, the TRS still needs to be done beforehand. We know of several attorneys who have registered the land (because realistically nobody at HMRC cares either way!), but I am not convinced that this is within their powers. Does anyone have any thoughts on the matter?
What is the downside for the attorney? The TRS rules impose legal obligations, including registration and updating, on trustees and so very firmly on a sole trustee; unless perhaps his incapacity automatically removes him as a trustee under the instrument so only a new trustee is obliged. HMRC are not going to complain that the registration was effected ultra vires. Who suffers loss if the attorney’s action. designed to discharge the grantor’s legal obligation. went beyond his powers. I suppose the costs of the operation might be in jeopardy.
Jack Harper
Yes the sensible action is to just crack on I suppose and stop wondering about the technicalities! Which is what we’ve been doing, but it seems very odd for HMRC not to provide a facility to be able to confirm that the lead trustee lacks capacity if the intention is to allow an attorney to do the registration in such circumstances. We are putting the trustees’ contact details as care of their attorney, so at least if anyone at HMRC ever looked at it they might understand the position (and obviously the URN etc will go to the correct place).