What if the Appointor becomes incapable of acting?

Just as it is important to determine who will act as appointor, it is also important to consider who will step into the role as appointor of the trust when the appointor dies or is incapacitated.These options include:

Successor named in deed

The Deed states who will succeed the appointor on their death. It can be a particular named person, or the executor of the appointor's will (i.e., the appointor's legal personal representative).

Successor appointed by will

The Deed states that the appointor is permitted to appoint a replacement appointor under the terms of the appointor's will. That person takes over the appointor role on the appointor's death.

Joint appointor succeeded by survivor

The Deed names two (or more) appointors, and provides that on the death of one appointor the survivor(s) continue to act as appointors.

Appointor replaces themselves during the term of the Deed

The Deed permits the appointor to appoint additional or replacement appointors.

Temporary succession (i.e. due to incapacity).

The Deed provides for temporary succession during any period when the appointor is unable to act. The replacement appointor may be determined by one of the methods above.

Combination of approaches

The Deed may set out a combination of the above to deal with succession. For instance, on the death of the appointor the appointor's spouse becomes appointor, and on the death of the spouse the spouse's executor becomes appointor.

If you want to implement any of the above methods, you may be able to prepare a deed of variation.

Other questions in Discretionary Trust