How might the need to remove an incapable trustee who has lost mental capacity arise in practice?

Removal of a trustee who has lost mental capacity, might crop up in an obvious scenario, such as a trust holding assets being administered and one of the trustees lose his mental capacity.

Alternatively, a less obvious example, might be where a husband and wife are holding a property in their joint names and one of them loses mental capacity, with the other spouse wishing to sell the property. In these circumstances, normally the Court would be asked to consider removing the trustee and appointing a new trustee in their place by Court order so that the property can be sold.

Is it worth checking any settlement deed to see whether there is power in this to remove the incapable trustee?

Yes, this would always be the first port of call to see whether the trust that has been created by way of a settlement deed provides for the ongoing trustees to remove a mentally incapable trustee, rather than involving the Court.

In what circumstances can ongoing trustees remove the mentally incapable trustee?

Sometimes it is possible for a trustee to be removed by way of the ongoing trustees executing a deed. However, if the trustee who has lost mental capaciry is also a beneficiary of the trust or there is any form of dispute over whether the trustee lacks mental capacity to act then, generally, an application to the Court would have to be made.

How is an application to the court made for removing an incapable trustee?

Normally this is done under s36 Trustee Act 1925. I have dealt with a number of these applications over the course the time. As usual with Court of Protection matters, numerous forms need to be completed and family members notified before matters are taken through with the Court to a final Order.