Samuel Okoronkwo was instructed to advise on the proposed release of capital under a discounted gift trust established by two settlors. The trust fund holds approximately £70,000, from which monthly income is drawn. The intention is to execute a deed of release and return the capital to the settlors’ joint account. One settlor lacks capacity and his affairs are managed under a registered lasting power of attorney held by a close family member, who also acts as trustee.
Samuel identified a material conflict of interest arising from the trustee’s dual role as attorney and trustee. While technically permitted, this creates a fiduciary conflict and exposes the trustee to future challenge, particularly if the release is perceived to benefit her personally. Samuel advised that any such signature must be authorised by the Court of Protection to avoid liability. The risk is heightened by potential third-party claims against the estate and the involvement of insurers who may be drawn into proceedings. The release is being considered ahead of schedule, and the insurers require a properly executed deed of release. The settlor’s lack of capacity prevents direct execution, and the alternative of leaving the trust running was discussed but deemed impractical given the intention to liquidate.
Samuel advised that an application be made to the Court of Protection for an order authorising the trustee’s signature. The court may appoint an independent guardian or approve the trustee’s execution. While the process may involve delay and cost, it provides legal safety and protects against future claims. Estimated costs are to be assessed, with initial guidance suggesting £2,000–£3,000. The deed should not be amended or lodged without clearance. Further enquiries will be made to confirm costs and procedural steps. The matter remains under review pending confirmation of trust value and insurer requirements. Samuel’s advice ensures the release is executed lawfully, with appropriate safeguards for the trustees, attorneys, and settlors.
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