Commentary on Clauses Part VI: Appointment and Retirement of Trustees Section 35: Appointment of substitute for incapable trustee
The problem addressed by section 35 arises where a trustee has become incapable of carrying out his role because of mental disorder but there is no one entitled and willing to appoint a trustee in his place under section 35(1) of the Trustee Act (Northern Ireland) 1958. In that situation the beneficiaries are given power by section 35(1) to direct the appointment of a specified person as a new trustee in place of the incapable trustee. They may only do so, however, if they are all over 18 years of age and have full legal capacity and, taken together as a group, they are absolutely entitled to the trust property. The direction of the beneficiaries must be in writing and must be given to the appropriate authority, as described in section 35(2): that means, to a controller appointed for the incapable trustee under Article 101 of the Mental Health (Northern Ireland) Order 1986, or an attorney acting for him under a power of attorney created by an instrument registered under article 8 of the Enduring Powers of Attorney (Northern Ireland) Order 1987, or a person authorised for the purpose by the High Court under Part VIII of the Mental Health Order.