The Appointer of a Family Trust is in a pivotal role in any estate planning strategy.
When the Appointer loses capacity, things can get murky, especially if they have appointed an attorney who is also a beneficiary or potential beneficiary of the Family Trust.
The New South Wales Court of Appeal has held in Belfield v Belfield  NSWCA 416 that the Appointer of a discretionary trust, who had granted an Enduring Power of Attorney and subsequently lost capacity, had the power under a Deed of Appointment to direct the trustee to exercise discretionary powers in certain ways. In that case, the Attorney appointed under the Enduring Power of Attorney was able to exercise the Appointer’s powers in relation the Family Trust.
This highlights not only the importance of having an Enduring Power of Attorney but also in selecting the right attorney.