A video series brought to you by our Contentious Trusts & Estates and Private Client teams.
Loss of capacity of those involved in trusts is an increasingly prevalent legal issue, and a growing cause of disputes.
In this video series, we bring together international experts to explore the issue of capacity, how to mitigate risk, pragmatically address this sensitive topic, and provide practical insights and guidance for fiduciaries.
The CEO is losing capacity – endangering the assets of the trust.”
What do we mean when we talk about loss of capacity? We explore loss of capacity in its various guises, for example cognitive decline, addiction, loss of free will, or lack of ability to communicate (incommunicado) etc. We look at different types of incapacity provisions in trust instruments and consider how we can identify and address such issues in order to protect vulnerable settlors.
Watch Chapter One
It is important that you put in place a structure that has sufficient flexibility to cope with changes in the future.”
Learn how to deal with concerns about a beneficiary losing capacity, the importance of in person discussions, a trustee’s fiduciary responsibility in this context and how to document capacity concerns.
Watch Chapter Two
Discover the difficulties of assessing settlor incapacity, capacity in the context of investment powers, the role of the Court of Protection and the cross- border picture. Explore any practical steps that trustees can take.
Watch Chapter Three
At the very moment when you need a protector to be a watchdog, they themselves are at risk of losing capacity."
Understand the effect of a protector losing capacity and the extent of a protector’s powers. Consider how to protect against capacity issues when drafting, the role of the court when trust instruments fall short and how protector committees can be useful.
Watch Chapter Four
Hear first-hand accounts of the effect of a director’s loss of capacity on their role within the structure, and how the Bartlett duty may be engaged. Explore considerations for trustees in removing a director who has lost capacity, and how to identify a replacement.
Watch Chapter Five
Under UK company law, a director will remain as a director, even though they have lost capacity."
Discover how to deal with capacity issues where a number of jurisdictions are involved and how the laws of different jurisdictions interrelate with each other.
Watch Chapter Six
We summarise the key insights and considerations from the series to provide practical guidance for fiduciaries.
Watch Chapter Seven
There are some jurisdictions where it's much more sensitive to raise issues around an individual's capacity."
A Question of Trust features leading Family Office Consultant Dr Richard Wolman, Deputy CEO at Summit Trust International Joanna Morse, barristers Constance McDonnell KC, Professor Jonathan Harris KC and Henry Legge KC, and the Mental Capacity team at Farrer & Co.
