Well, my view is that logically it ought to be OK if an attorney can revoke on behalf of an incapacitated settlor, but in the absence of express UK authority blessing that view I would at the least be very cautious about entering into it.
I was going to say that California is one of those states whose statute refers to whether the settlor has capacity to revoke, but I see on checking the exact language of s. 15800 that it says “during the time that a trust is revocable
and the person holding the power to revoke the trust is competent” all rights belong to and the trustee’s duty runs only to “The person holding the power to revoke.” In that situation, I would say the case is much stronger that there is a bare trust for the attorney/power holder (in that capacity). There is still no settled authority, however, on the UK treatment of US revocable trusts, so I would still be cautious about entering into one and press the California advisor to quantify the perceived advantages of using a revocable trust. (It is easy for them to recommend revocable trusts in a purely domestic context, as they are fiscally transparent in the US.)
I certainly don’t want to cut off debate on one of my favourite topics by weighing in, though, and I would be glad to hear others’ views and experiences.
Ian Watson
Three Stone