Replacing trustee lacking capacity TOLATA 1996 s. 20
Under TOLATA 1996 s. 20, adult beneficiaries who own trust property outright may direct a deputy or attorney to replace a trustee who lacks capacity.
This section applies where— a trustee lacks capacity (within the meaning of the Mental Capacity Act 2005) to exercise his functions as trustee, there is no person who is both entitled and willing and able to appoint a trustee in place of him under section 36(1) of the Trustee Act 1925, and the beneficiaries under the trust are of full age and capacity and (taken together) are absolutely entitled to the property subject to the trust. The beneficiaries may give to— a deputy appointed for the trustee by the Court of Protection, an attorney acting for him under the authority of an enduring power of attorney or lasting power of attorney registered under the Mental Capacity Act 2005 a person authorised for the purpose by the Court of Protection , a written direction to appoint by writing the person or persons specified in the direction to be a trustee or trustees in place of the incapable trustee.
Text in force at .
Source: legislation.gov.uk — The National Archives (legislation.gov.uk), reproduced under licence Open Government Licence v3.0.
What it actually says
This section provides a procedure to replace a trustee who lacks mental capacity within the meaning of the Mental Capacity Act 2005. It applies when there is no person willing and able to exercise a power to appoint a replacement trustee under section 36(1) of the Trustee Act 1925.
To use this mechanism, all beneficiaries under the trust must be of full age and capacity, and together they must be absolutely entitled to the trust property. They can issue a written direction to a deputy appointed by the Court of Protection, an attorney holding a registered enduring or lasting power of attorney, or another person authorised by the Court of Protection.
Upon receiving the written direction, the deputy, attorney, or authorised representative is directed to appoint in writing the person or persons chosen by the beneficiaries to replace the incapable trustee.
When it applies
- Adult beneficiaries who own family land outright want to replace a co-trustee who has lost mental capacity and can no longer manage property matters.
- Beneficiaries of full age and capacity instruct a registered attorney under a lasting power of attorney to execute the appointment of a replacement trustee.
- Beneficiaries direct a Court of Protection deputy to appoint a substitute trustee because no person is able or willing to make an appointment under section 36(1) of the Trustee Act 1925.
What this section does not say
- Trusts where any beneficiary is a minor or lacks mental capacity (governed by general trust provisions or court applications under section 14).
- Replacing a trustee who has full mental capacity but refuses to act or sell the property (dealt with under section 19 or section 14).
- Direct court orders appointing or removing trustees outside the specific representative procedure (handled under Court of Protection powers or section 14).
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This page reproduces the text of TOLATA 1996 s. 20 in force at the date shown and explains it in general terms. It is not legal advice and takes no account of the circumstances of your case, which can change the answer completely. For a live dispute, for limitation periods, and before taking any step in court, consult a qualified lawyer in England and Wales.