Keywords: successor appointor, corporate appointor, guardian
What is the Appointor's/Principal's role?
Although the Trustee has control over Trust assets (as they can exercise their power to distribute Trust income according to their absolute discretion, subject to the Deed's provisions), the Appointor (or Principal) holds real power and control over the Trust as they have the power to appoint or remove the Trustee/s. Therefore, extreme care should be taken when choosing who should be the Appointor.
In some Deeds, the Appointor may also hold other powers e.g. their consent may be required prior to the making of any variations or decisions by the Trustee (although this is not the case with the current NowInfinity Deed). If you would like to incorporate these kinds of provisions into your Trust deed, you will need to add on legal review to your order.
Given that one of the main purposes of having an Appointor in place is to ensure that total control of the Trust is not vested in the Trustee, it is worth considering having an Appointor who is not also the Sole Trustee.
Does a Trust need an Appointor?
Under the NowInfinity Discretionary Trust deed, the appointment of an Appointor is optional.
If there is no Appointor appointed, the Trustee will be the Appointor.
If more than one Appointor is appointed, they will exercise their powers jointly and make decisions by majority.
Can I appoint Successor Appointors?
If you appoint an Appointor within the Discretionary Trust deed establishment service, you have the option to appoint Successor Appointors.
If there is no Successor Appointor nominated, then on death or resignation of the Appointor the position resigns and the relevant powers transfer to the Trustee.
Can I have a Corporate Appointor?
It is possible to have a Corporate Appointor. However, care should be taken in deciding who will be the Directors and Shareholders of the Company. Furthermore, you should consider the rules for decision-making, within the Constitution of the Corporate Appointor, as decisions may not require unanimous approval but rather majority support.
If you would like to appoint a Company as the Appointor, you will need to request for this via the add-on legal review service (scoped) when you make your Discretionary Trust order, as the Deed's provisions will need to be amended accordingly.
What is a "Guardian"?
Another role that may exist in a Discretionary Trust, separate from the Appointor, is that of a Guardian.
A Guardian is a person who may be given the power to protect the Trust property and the interests of those Beneficiaries who are not of full legal capacity and therefore unable to protect their own interests.
The Guardian can, for example, act as a sort of "precautionary measure" i.e. the Deed may require certain decisions by the Trustee to be approved by the Guardian. This means that if a new Trustee was to come into place upon death, the Guardian may be able to "protect" the trust from being "raided" by, say, the new Trustee - i.e. the Trustee may not be able to distribute Trust income/capital to certain Beneficiaries without the Guardian's consent to do so.
Further Information
Discretionary Trust Change of Appointor: Ordering checklist
How to change the Appointor/Principal or Guardian of a Discretionary Trust?
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If you are not 100% confident in filling out the form, or not engaging your own solicitor for their review, it is recommended that you add on legal review to your order.