Articles

Trust Law: Issues Involving the Ageing Trustee

Tuesday February 14, 2017

Vicki Ammundsen from Vicki Ammundsen Trust Law Limited joined Tori Smith of Legalwise Seminars to discuss issues involving the ageing trustee.

To hear directly from Vicki, join us at the 10 CPD Hours in One Day Conference (Private Clients and Commercial Practice stream) on from Thursday 16 March, at the Stamford Plaza Auckland.

 

1. In your opinion, what are the big issues/red flags that you have seen come up recently regarding testamentary capacity? I.e what are some signs that indicate that capacity might be an issue?

Issues with capacity include:
• situations where practitioners do not recognise that capacity may be an issue
• recognising that capacity can be a sliding scale – for example a client may have capacity to enter into and EPOA, but may not have sufficient capacity for a will or to enter into trust documents
• reluctance to seek specialist help to determine questions of capacity


2. What has been the most difficult case that you have come across your desk in this area and why?

A client was assessed as having capacity to enter into enduring powers of attorney. Sometime later she entered into a range of trust documents. No new assessments of capacity were carried out. An assessment a short time later found that she did not have capacity. This brought into question the validity of the trust appointments. The lawyer acting, who was also a trustee, was reluctant to concede the point and court proceedings had to be filed before matters could be addressed.

 

3. Your presentation will also dive into the removal of a trustee. What are the three most important things to remember when you’re navigating the removal/transfer process?

• Costs
• Ensuring all property is transferred to the new trustees
• The need for a vesting order if a trustee has lost mental capacity

 

4. Capacity can be a sensitive area, especially if a person has been the trustee for a long time. How could a person approach a trustee delicately about a potential capacity issue?

Sensitivity is important, but so is honesty. Some clients will not accept any loss of capacity, even where for example the client can no longer remember his or her own name. Raising the subject by way of question can be useful – Do you think you are still up to being a trustee? Often clients if asked respectfully will suggest that it is time to retire. Front footing the matter early in a professional relationship and having a plan can be a good practise so that the issue is not sprung on the client out of nowhere.

 

To hear directly from Vicki, join us at the 10 CPD Hours in One Day Conference (Private Clients and Commercial Practice stream) on from Thursday 16 March, at the Stamford Plaza Auckland.

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"Very interesting and extremely well presented; speakers knew the area very well"

Delagte - Criminal Law Update, Auckland, March 2017

 

 

 

 

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