Can a trust corporation be appointed as an attorney under a lasting power of attorney?

My firm is considering setting up a trust corporation that could be appointed under a lasting power of attorney (LPA) to avoid problems (such as retirement or death) that can occur when a partner is appointed. What is a trust corporation and is it possible for a trust corporation to be appointed as an attorney?

Section 68(18) of the Trustee Act 1925 defines a “trust corporation” as the public trustee or a corporation that is either:

• appointed by the court in any particular case to be a trustee, or
• entitled to act as custodian trustee by rules made under section 4(3) of the Public Trustee Act 1906

For a company to qualify as a trust corporation it must:

• be constituted under UK (or EU) law
• be empowered by its constitution to undertake trust business in England and Wales
• have one or more places of business in the UK, and
• be a company registered in the UK (or in the EU) and have issued share capital of at least £250,000 of which not less than £100,000 has been paid up in cash

See also section 4(3) of the Public Trustee Act 1906 and rule 30 of the Public Trustee Rules 1912 (the rule has been updated regularly since).

A trust corporation does not explicitly have to state in its memorandum and articles that it is “empowered by its constitution to undertake trust business”.

However, firms forming a new trust corporation may feel it’s wise to include explicit wording to this effect in its formation documents.

Such a corporation can be a wholly owned subsidiary of another company or its shares may be held by a limited liability partnership (LLP).

A trust corporation may be part of a group structure but is a separate legal entity and may hold assets in England, Wales and overseas.

A barrier to many firms setting up a trust corporation is the number of paid-up shares that are required.

It’s possible to appoint a trust corporation as an attorney under:

• a general power of attorney
• a trustee power of attorney (provided the trust corporation's constitution authorises this)
• a property and financial affairs LPA (for appointments of the trust corporation as attorney, you must ensure that the rules in relation to who can act as certificate provider and the correct completion of the LPA are observed)

It’s not possible to appoint a trust corporation as an attorney under a health and welfare LPA.

Although a trust corporation or a trust company can be appointed as a trustee, a trust company (unlike a trust corporation) cannot act as an attorney under a property and financial affairs LPA.

It’s important to ensure a trust corporation (not a trust company) is set up if it’s necessary for it to act as an attorney.

As well as acting as an attorney, a trust corporation can also act as a property and affairs deputy and a trustee.

For more information, see our practice notes on:

• trust corporations
• lasting powers of attorney
• fiduciary roles and retirement or departure from practice by a private client practitioner