PART VIAPPOINTMENT AND RETIREMENT OF TRUSTEES

35Appointment of substitute for incapable trustee

1

This section applies where—

a

a trustee is incapable by reason of mental disorder (within the meaning of the Mental Health Order) of exercising his functions as trustee;

b

there is no person who is both entitled and willing and able to appoint a trustee in place of him under section 35(1) of the Trustee Act (Northern Ireland) 1958 (c.23); and

c

the beneficiaries under the trust are of full age and capacity and (taken together) are absolutely entitled to the property subject to the trust.

2

The beneficiaries may give to—

a

a controller appointed for the trustee under Article 101 of the Mental Health Order;

b

an attorney acting for the trustee under the authority of a power of attorney created by an instrument which is registered under Article 8 of the Enduring Powers of Attorney (Northern Ireland) Order 1987 (NI 16); or

c

a person authorised for the purpose by the High Court under Part VIII of the Mental Health Order,

a written direction to appoint by writing the person or persons specified in the direction to be a trustee or trustees in place of the incapable trustee.

3

In this section “the Mental Health Order” means the Mental Health (Northern Ireland) Order 1986 (NI 4).