sec.22Appointment of trustees—replacement of last continuing trustee with impaired capacity

sec.22 Appointment of trustees—replacement of last continuing trustee with impaired capacity

This section applies if all of the following apply— the last continuing trustee of a trust is incapable of acting as trustee because the trustee has impaired capacity for administering the trust; there is no appointor for the trust, or no appointor who is able and willing to act under section 20 to appoint a trustee to replace the last continuing trustee; if the trust instrument includes a mechanism, other than the appointment of an appointor, for appointing a trustee to replace the last continuing trustee—an appointment of a trustee under the mechanism has not taken effect within a reasonable period after the later of the following to happen to the last continuing trustee— becoming the last continuing trustee; becoming a person with impaired capacity for administering the trust; an administrator or attorney for the last continuing trustee is authorised, under their appointment as administrator or attorney, to exercise power for all financial matters for the trustee. For subsection (1) , it does not matter whether the last continuing trustee is an original trustee of the trust or was appointed by the court or otherwise. The administrator or attorney may, by instrument, appoint 1 or more persons as trustees to replace the last continuing trustee. See section 14 in relation to the limit applying to the number of trustees of particular trusts. See also section 166 in relation to the court’s power to appoint and remove trustees. The administrator or attorney may appoint themself as a trustee under subsection (3) . If there is more than 1 administrator or more than 1 attorney for the last continuing trustee, the administrators or attorneys must exercise the power of appointment under subsection (3) jointly. To remove any doubt, it is declared that— the exercise of the power of appointment under subsection (3) is not made in the capacity of administrator or attorney for the last continuing trustee; and neither the Guardianship and Administration Act 2000 nor the Powers of Attorney Act 1998 applies in relation to the exercise of the power of appointment. This section applies subject to a contrary intention in— the trust instrument; or the order or instrument by which the administrator or attorney is appointed. (sec.22-ssec.1) This section applies if all of the following apply— the last continuing trustee of a trust is incapable of acting as trustee because the trustee has impaired capacity for administering the trust; there is no appointor for the trust, or no appointor who is able and willing to act under section 20 to appoint a trustee to replace the last continuing trustee; if the trust instrument includes a mechanism, other than the appointment of an appointor, for appointing a trustee to replace the last continuing trustee—an appointment of a trustee under the mechanism has not taken effect within a reasonable period after the later of the following to happen to the last continuing trustee— becoming the last continuing trustee; becoming a person with impaired capacity for administering the trust; an administrator or attorney for the last continuing trustee is authorised, under their appointment as administrator or attorney, to exercise power for all financial matters for the trustee. (sec.22-ssec.2) For subsection (1) , it does not matter whether the last continuing trustee is an original trustee of the trust or was appointed by the court or otherwise. (sec.22-ssec.3) The administrator or attorney may, by instrument, appoint 1 or more persons as trustees to replace the last continuing trustee. See section 14 in relation to the limit applying to the number of trustees of particular trusts. See also section 166 in relation to the court’s power to appoint and remove trustees. (sec.22-ssec.4) The administrator or attorney may appoint themself as a trustee under subsection (3) . (sec.22-ssec.5) If there is more than 1 administrator or more than 1 attorney for the last continuing trustee, the administrators or attorneys must exercise the power of appointment under subsection (3) jointly. (sec.22-ssec.6) To remove any doubt, it is declared that— the exercise of the power of appointment under subsection (3) is not made in the capacity of administrator or attorney for the last continuing trustee; and neither the Guardianship and Administration Act 2000 nor the Powers of Attorney Act 1998 applies in relation to the exercise of the power of appointment. (sec.22-ssec.7) This section applies subject to a contrary intention in— the trust instrument; or the order or instrument by which the administrator or attorney is appointed.