Trustee replaced after losing mental capacity thanks to Partner’s expertise

Private Client Partner and Notary Public Tonina Ashby recently acted for a trustee who was concerned about her co-trustee losing mental capacity.

Both were trustees of a life interest trust, which contained a property. The incapacitated trustee was also the beneficiary of the life interest trust during her lifetime and was living in the property rent-free in accordance with the terms of the trust. When the co-trustee lost capacity and was moved into residential care, Tonina was contacted.

Decisions about the trust and the property within it needed to be made; however, the trustee with capacity was now unable to do so as a ‘sole trustee’. As a Court of Protection specialist, Tonina was able to support her client to apply for the second trustee to be removed and replaced with a professional trustee.

This required arranging a capacity assessment for the incapacitated trustee, notifying relevant beneficiaries and completing details of the trust on a number of forms for the court. With Tonina’s support, a new trustee was selected, approved and appointed by the court in accordance with the Trustee Act 1925.

The court agreed to replace the incapacitated trustee with the HCR Trust Corporation, which acts as a professional trustee, deputy and attorney. This means that the property within the trust can now be sold, and the money invested to provide ongoing income to support the incapacitated trustee with her care costs.

Tonina said: “It’s important to involve us at an early stage if you have concerns about a trustee’s ability to act in that role. Action needs to be taken to ensure the trust can continue to be managed and that trustees can meet their obligations and responsibilities to the beneficiaries.

“The appointment of a professional trustee can also ensure the complexities of trust management, tax and accounting requirements can be properly managed.”