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Trustees - challenges of incapacity - Online CPD

Juliet Moses 2020-839 Rebecca Rose 2020-83
Juliet Moses
Partner, TGT Legal
Rebecca Rose
Barrister, Bankside Chambers

Package includes:

Online CPD Module  l  Electronic book  l  PowerPoint Presentation

Package Fee (incl GST)

  • $149 - NZLS members and Associate members
  • $179 - Non-members

Note: Access to the online files is via your "My CPD" page. If you would like to purchase multiple packages, please contact us here.

Online CPD Module

Presentation time: 90 minutes

As practitioners we are all likely to be faced with situations where our clients’ capacity is questionable, and they have left it too late to either retire as trustees or transfer their power of appointment of trustees.

This webinar will consider the relevant tests for capacity, practical steps that you can take to mitigate the complications when capacity is lost, how to remove a trustee in that situation, the transfer of assets to new trustees, and other issues that arise.

Topics covered will include:

  • An overview of the definition of capacity for trustees
  • Relevant provisions of the Trusts Act 2019 and what they will mean in practice
  • A discussion of what to do and what not to do when a trustee lacks capacity and the risks of ignoring this
  • The non-court power of removal; including the nature of the power, test of capacity in relation to that power, s 43 of the Trustee Act 1956, non-use of EPAs and passing on power
  • The court powers under s 51 of the Trustee Act and vesting orders
  • A discussion of difficulties with medical assessments, ethical issues and how evidence played out in the case Green v Green
  • A practical guide for correctly drafting trust deeds to avoid these issues.

Learning objectives

By completing this module you will gain:

  • Practical guidance on how to best mitigate trustee capacity issues and how to handle these issues if they arise.
  • Up-to-date knowledge of reforms within the Trusts Act 2019.

Electronic book

Authors: Juliet Moses, Rebecca Rose
Published: 24 September 2020
Pages: 27


With an aging population and longer life expectancies, as well as increasingly complex family structures, capacity issues relating to trusts are becoming increasingly prevalent and problematic.

There is no automatic trigger at law that immediately fires a trustee or appointor when they lose capacity, even if that person’s property and personal affairs are subject to orders under the Protection of Personal and Property Rights Act 1988 (the PPPRA).

Positive steps are required to be taken to remove an incapacitated trustee from office – either pursuant to powers contained in the trust deed, s 43(1) of the Trustee Act 1956 (Trustee Act) and from 30 January 2021, s 104(1) of the Trusts Act 2019 (Trusts Act) – or, absent that, by application to the High Court pursuant to s 51 of the Trustee Act or s 112 of the Trusts Act.

But what is the measure of capacity? And what if the person holding the power to appoint and/or remove trustees, is incapacitated?

PowerPoint Presentation

These are the slides included in the presentation.

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