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Capacity to Act as a Trustee

The role of Trustee is often multi-faceted; the Trustee must balance several responsibilities in relation to the Trust. Sometimes, a person’s ability to continue in this role may be questioned perhaps due to symptoms of cognitive impairment and it maybe appropriate for them to relinquish their role or for another person to be appointed as Trustee in lieu of them.

TSF can undertake an assessment of capacity to act as a Trustee which will explore the person’s understanding of the Trustee role, including questions about financial management and their ability to problem solve in relation to how the Trust works.

What is the legal test used for a Capacity to Act as a Trustee Mental Capacity Assessment?

A Capacity to Act as a Trustee Assessment always uses the Mental Capacity Act (2005) two stage test of capacity to determine whether a person lacks capacity to make the decision in question.

In order to satisfy this test, a cognitive impairment must be present (this is the diagnostic test) and the person will be assessed as to whether they are able to understand, retain, and use and weigh information specific to the decision being made (this is known as the functional test).

A Causative Nexus must be established, that is to say, there must be a link between the functional test and the diagnostic test in order for a person to be assessed as lacking capacity for a specific decision.


Assessment process

In order to complete a thorough assessment, we will need confirmation of any diagnosis or impairment that might affect the person’s ability to act as a Trustee. We will also need an overview of the details of the Trust. Information will be kept strictly confidential and used to develop questions for the assessment and to verify the answers given.


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