Q&As

The deceased created a life interest trust over their share of a property. One of the trustees of the life interest trust is the life tenant, who has now lost capacity but has a Property and Affairs Lasting Power of Attorney. The trust has no express power of appointment or removal of trustees. Can the life tenant's attorneys and the other trustees sell the property or does the life tenant trustee need to be removed first? If they need to be removed, how can this be done?

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Copyright © 2025 LexisNexis
Produced in partnership with Lynne Counsell of Addington Chambers
Published on: 16 April 2021
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We have assumed that

  1. •

    the Property Power of attorney is a Property and Affairs Lasting Power of Attorney (LPA)

  2. •

    the attorneys and trustees are different people

Incapacitated trustees

While an attorney under a Property and Affairs LPA has wide powers to deal with the donor’s assets and investments, including their interest in any property, the general principle is that they cannot act on behalf of the donor in the donor’s capacity as trustee. In such circumstances, it is usually necessary to remove and replace the incapacitated trustee.

In

Lynne Counsell
Lynne Counsell

Barrister, Addington Chambers

Lynne has been in traditional Chancery practice for some thirty years, specialising in probate matters, construction of wills and trusts and also financial services and drafting.

Lynne was for some years counsel for Tower Hamlets, representing them on landlord and tenant cases and counsel for Bedford Building Society representing it on mortgage cases.

Lynne has written or updated over fifty books, including writing the initial volume of Atkin’s Court Forms “Financial Services” and updating Halsbury’s Laws on Injunctions. Lynne was also co-author of two editions of “Insider Trading” and co-editor and one of the writers of “Chancery Practice and Procedure.”

Articles include “Marketing of Investments” for the Law Society Gazette and “The Doctrine of Mutual Wills” for the Trust Quarterly Review. Lynne won one of the few cases on mutual wills in the last fifty years – Charles v Fraser (2010).

Lynne has drafted the standard unit trust for the government of Nigeria, the rules and related documentation for various building societies and clubs, shareholder agreements, company takeovers compliance documentation for certain banks as well as wills and trusts.

Lynne was awarded the 2017 Corporate international Magazine Global Award – “Investment Contracts Barrister of the Year in England”.

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Jurisdiction(s):
United Kingdom
Related legal acts:
Key definition:
Life interest definition
What does Life interest mean?

An entitlement to trust income or to the use of trust assets, but not the capital. Also called an possession'>interest in possession.

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