As a qualified Trusts and Estates Practitioner and Director at Four Oaks Legal Services, I frequently encounter Trusts that require not only legal expertise but also an understanding of the needs and financial implications for all parties involved.
A recent case perfectly illustrated the complexities within Trust law. I dealt with a situation where the Settlor (the person who created the Trust) had lost mental capacity some time after establishing the Trust.
This particular Trust had already passed through four different hands across two law firms before reaching me. Each previous solicitor had struggled to find a viable solution, leaving the Settlor’s relatives in a state of uncertainty. Two of those solicitors had even concluded that nothing could be done to assist the Settlor. However, that advice was incorrect.
The Family Protection Trust in question had been set up by an elderly Settlor who later lost mental capacity, making its management particularly delicate. The Settlor required full-time care, yet her funds were tied up in the Trust—a Trust that her relatives could not access. Furthermore, no relatives had been appointed as Trustees.
Adding to the complexity, the only Trustees named were solicitors from a law firm that had since closed down, leaving the Trust without anyone to administer it. The Trust assets amounted to a six-figure sum—funds that could have significantly improved the Settlor’s quality of care.
With the Trust in limbo and no effective management, the relatives faced significant delays and potential financial losses.
Upon reviewing the case, I noticed that previous solicitors had not considered seeking an order from the Court of Protection to appoint new Trustees.
A detailed court application was required, outlining the circumstances and the urgent need for new Trustees. The application emphasised the importance of acting in the best interests of the Settlor. The Court of Protection plays a crucial role in such matters, ensuring that vulnerable individuals receive proper legal and financial support.
We also needed to locate and formally serve notice to the solicitors named as Trustees. Despite their firm no longer trading and initial difficulties in contacting them, we managed to fulfil this requirement.
Following a thorough review, the Court granted our application and we successfully appointed new Trustees—relatives of the Settlor. This outcome was not just a procedural victory; it provided the family with much-needed reassurance that the Trust could finally be managed effectively, ensuring the Settlor received the care she required.
Family Protection Trusts can be tricky and this case was no exception. Expert legal advice was essential in enabling the family to access the funds held in Trust, giving them peace of mind.
If you need assistance with a Trust matter, please get in touch. I would be happy to help, just contact me below.
Adam Penn
T.E.P.