Trustees and Capacity
If it appears that a Trustee has lost, or is beginning to lose, mental capacity and is no longer able to perform their duties as a Trustee, the other Trustees must consider how best to remove the incapacitated trustee (P). This can be achieved by the following methods (depending on the circumstances):
− By exercising an express power of removal contained in the Trust Deed.
− Removal using the power contained in s36 of the Trustee Act 1925 (TA 1925) (either wholly out of court or with the consent of the Court of Protection).
− Removal by the court under s41 TA 1925.1
Removal under express powers
Although this is the logical place to start, it is rare for English Trust instruments to provide an express power for removal and replacement of P. Even if this is the case, careful attention will need to be paid to the specific terms of the power. Under normal circumstances, the Trustees should be advised to turn their attention to s36 TA 1925.
Removal under s36 TA 1925
Section 36(1) TA 1925 contains a power of removal and replacement of Trustees who are ‘incapable of acting’. The power is given to:
1. The person or persons nominated for the purpose of appointing new Trustees by the instrument, if any, creating the Trust (even if there is not often an express power of removal contained in a Trust Deed, there may more often be provisions entitling persons such as the Settlor to appoint new Trustees).
2. If there is no such person, or no such person able and willing to act, the power is given to the surviving or continuing Trustees or Trustee for the time being, or the personal representatives of the last surviving or continuing Trustee.
‘Incapable of acting’ is not defined by TA 1925, but a Trustee was removed under a forerunner of the section where she was, as a result of age and infirmity, ‘in such a condition that she [could not] act properly in his trust, and [was], in fact, incapable of acting’: see Re Lemann’s Trusts (1883) 22 Ch D 633. It is likely to be sufficient if the Trustee lacks capacity within the meaning of s2 of the Mental Capacity Act 2005 (MCA 2005).
Under this section, a person lacks capacity ‘in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain’.
Whether a person has capacity in a particular matter depends on whether they are able to perform the specific role required of them, not on some general notion of their capacity as a whole.
Questions of capacity, both under the MCA 2005 and generally, are issue-specific: whether a person has capacity in a particular matter depends on whether they are able to perform the specific role required of them, not on some general notion of their capacity as a whole.
This approach is reinforced by s3 MCA 2005, which states that a person is unable to take a decision for themselves if they are unable:
(a) to understand the information relevant to the decision;
(b) to retain that information;
(c) to use or weigh that information as part of the process of making the decision;
(d) to communicate the decision (whether by talking, using sign language or any other means).
We consider that the level of capacity required to act as a Trustee is likely to be relatively high compared to the capacity required for other decisions (e.g. for a person to decide their place of residence). However, the level of capacity required to act is likely to depend on the complexity of the Trust and the investment, administrative and dispositive decisions to be made in relation to it.
To exercise the s36 power, it is fundamental for the continuing Trustees to establish a clear case that P lacks capacity. These Trustees would be wise to obtain and keep a copy of a mental capacity assessment from a qualified practitioner, such as a GP or consultant psychiatrist. It is also worth reciting in the deed under which P is replaced that P has been replaced owing to a lack of capacity and that a medical report has been obtained confirming this condition.
When the Trustee has a beneficial interest in the Trust, the replacement of Trustees under s36 TA 1925 is not always simple. Section 36(9) states that a Trustee who has lost capacity may not be replaced using the s36 power where that Trustee also has a beneficial interest in the Trust property, unless leave to replace them has been given by the Court of Protection.
This protracted process for applying is detailed in Practice Direction G to Part 9 of the Court of Protection Rules 2007, and includes an extensive list of suggested exhibits to accompany the application, including the Trust document, conveyancing documents, details of the existing Trustee(s) and independent witness statements confirming the suitability of the new Trustee, to name but a few.
It is not difficult to imagine a situation where an impatient purchaser of a property withdraws from the transaction rather than wait for a court order to be granted. Therefore, there is a clear and practical reason for appointing a second attorney from the outset where a donor co-owns property with their attorney.
Removal under s41 TA 1925
Sometimes it may not be possible for the continuing Trustees to make use either of an express power or the s36 power. Such a situation may arise where there is a dispute between the Trustees over the removal or replacement of P. Or there may not be cast-iron evidence that P has lost capacity, for example because P is exhibiting behaviour that suggests a lack of capacity, but no medical report can be obtained. In the latter circumstance, exercising the s36 power would be imprudent, as questions could later arise over whether the conditions in s36(1) were met. If the requirements were not met, there would not be any valid replacement of P, meaning any subsequent decisions by the Trustees that P did not join in with could be void.
Another option is to apply to the court under s41 TA 1925. This section provides that where it is expedient to appoint a new Trustee or Trustees in place of an existing Trustee, and it proves inexpedient, difficult or impracticable to do so without the assistance of the court, the court can make an order effecting the replacement. One of the specific scenarios mentioned in the section where the Court can make an order is where the Trustee concerned lacks capacity. If the continuing Trustees are not sure whether or not P lacks capacity, but P appears unwilling or unable to act in the administration of the Trust, two alternative grounds for removal would be available to the continuing Trustees: lack of capacity and the lack of willingness or ability to act in the Trusts.