For co-owners of land or trustees who need to delegate their trustee functions by power of attorney, for example when one co-owner is abroad during a property sale. Made under the Trustee Delegation Act 1999 or section 25 of the Trustee Act 1925. For England and Wales.
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A trustee power of attorney is a deed by which a trustee delegates the execution or exercise of the trusts, powers and discretions vested in them as trustee to an attorney. It is made under section 25 of the Trustee Act 1925, as substituted by section 5 of the Trustee Delegation Act 1999.
Two features distinguish it from every other power of attorney. It can last no longer than twelve months. And the delegating trustee must give written notice of it, before signing or within seven days afterwards, to each co-trustee and to anyone with power to appoint new trustees. The trustee also stays personally liable for the acts and defaults of their attorney for the whole period, exactly as if they were their own.
Other names: section 25 power of attorney, trustee delegation deed, delegation of trustee functions, s.25 Trustee Act power, trustee POA.
Note the distinction. A general or specific power of attorney delegates what you do in your own name. A trustee power of attorney delegates what you do as a trustee. Jointly owned land is held on trust, so co-owners are trustees whether or not they think of themselves that way.
| Requirement | What it means | Source |
|---|---|---|
| Maximum twelve months | The delegation runs for twelve months from execution, or any shorter period stated in the deed. It can be renewed by a fresh deed | s.25(2) Trustee Act 1925 |
| Written notice within seven days | Before giving the power, or within seven days after, the trustee must notify each co-trustee and each person with power to appoint new trustees, stating the commencement date, the duration, the attorney and the reason for the delegation | s.25(4) Trustee Act 1925 |
| Continuing liability | The delegating trustee remains liable for the attorney's acts and defaults as if they were their own | s.25(7) Trustee Act 1925 |
Failure to give the notice does not invalidate anything done by the attorney in favour of a person dealing with them in good faith, but it is a breach by the trustee and it will be picked up on any competent title check.
Where trust land is sold, capital money must be paid to at least two trustees or a trust corporation for the buyer to take free of the beneficial interests. That is the overreaching requirement in section 27(2) of the Law of Property Act 1925 and section 2 of the same Act.
An attorney appointed under section 25 can supply the second signature for this purpose, which is why this document so often appears on a conveyancing file. Since the Trustee Delegation Act 1999, the attorney may be the only other co-trustee. Section 7 of the 1999 Act deals with how the two trustee rules apply where an attorney is acting.
Where a trustee holds land in which they themselves have a beneficial interest, section 1 of the Trustee Delegation Act 1999 offers a separate route, allowing a general power of attorney to cover the trustee function in relation to that land. If your situation is that of a beneficial co-owner rather than a trustee of a wider trust, take advice on which of the two routes fits.
About the trust
About the delegation
Execution and notice
Diarise the seven days from the moment you sign. The notice obligation is the single most commonly missed step. Send it by a method that gives you proof of delivery and keep the evidence with the deed.
Do not exceed twelve months. A delegation purporting to run longer is not valid for the excess. If the need continues, execute a fresh deed and give a fresh notice.
Remember you stay on the hook. Section 25(7) makes the delegating trustee liable for the attorney's acts and defaults. Choose an attorney you would be content to answer for, and consider limiting the functions delegated rather than delegating everything.
Check the trust instrument first. A trust deed can restrict or exclude delegation, or impose its own conditions. Section 25 applies notwithstanding any rule of law or equity to the contrary, but a well drafted trust instrument will often say something about it.
This is not a lasting power of attorney. It does not survive the trustee's loss of mental capacity and it has nothing to do with the Office of the Public Guardian. It also does not remove you as a trustee. If you want to step down permanently, you need a deed of retirement, not a delegation.
Because trustee functions are held in a fiduciary capacity, not personally, and the general rule is that a trustee must act personally. Section 25 of the Trustee Act 1925 is the statutory exception that permits delegation, and it comes with its own conditions on duration, notice and liability. A general power of attorney does not satisfy them, except in the narrow case covered by section 1 of the Trustee Delegation Act 1999.
Twelve months from the date the power comes into operation, or any shorter period the deed states. The delegation can be renewed by executing a new power once the first has expired.
Each of the other trustees, and each person who has power to appoint new trustees. The notice must specify the commencement date, the duration, the attorney, and the reason why the power is being given. It must be given before the power is signed or within seven days after.
The delegation is not void, and a person dealing with the attorney in good faith is protected, but the trustee is in breach of section 25(4). On a property transaction the missing notice will usually surface on a title requisition and can delay completion.
Yes. The restriction that prevented a sole co-trustee from being the attorney was removed by the Trustee Delegation Act 1999. Section 7 of that Act governs how the two trustee rules operate where an attorney is acting, so check the position before relying on a single attorney to supply the second signature.
Yes. Under section 25(7) of the Trustee Act 1925 the delegating trustee is liable for the acts and defaults of the attorney as if they were their own. Delegation transfers the work, not the responsibility.
Yes, and this is the most common use. Co-owned land is held on trust, so a co-owner who cannot attend completion delegates their trustee function under section 25 so that the transfer can be signed and capital money can be paid to two trustees.
No. There is no registration with the Office of the Public Guardian and no fee. It is effective on execution as a deed. HM Land Registry will want to see the original or a certified copy on any registrable disposition.
No. Like every power of attorney outside the Mental Capacity Act 2005, it ends automatically if the donor loses capacity. Since section 6 of the Trustee Delegation Act 1999 a section 25 delegation can be made by an enduring power, but the duration, notice and wording requirements of section 25 still apply.
Section 34(2)(b) of the Pensions Act 1995 permits delegation by a trustee of a trustee scheme under section 25 for a period not exceeding twelve months. Pension trusteeship carries additional regulatory duties, so take advice before delegating.
This page and the trustee power of attorney were drafted and reviewed by the lawyers who build Hello Legal's document library.
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