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Nominees and custodians |
| Power to appoint nominees. |
16. - (1) Subject to the provisions of this Part, the trustees of a trust may-
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(a) appoint a person to act as their nominee in relation to such of the assets of the trust as they determine, and |
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(b) take such steps as are necessary to secure that those assets are vested in a person so appointed. |
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(2) An appointment under this section must be in or evidenced in writing.
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(3) This section does not apply to any trust having a custodian trustee.
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| Power to appoint custodians. |
17. - (1) Subject to the provisions of this Part, the trustees of a trust may appoint a person to act as a custodian in relation to such of the assets of the trust as they may determine.
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(2) For the purposes of this Act a person is a custodian in relation to assets if he undertakes the safe custody of the assets or of any documents or records concerning the assets.
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(3) An appointment under this section must be in or evidenced in writing.
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(4) This section does not apply to any trust having a custodian trustee.
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| Investment in bearer securities. |
18. - (1) If trustees retain or invest in securities payable to bearer, they must appoint a person to act as a custodian of the securities.
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(2) Subsection (1) does not apply if the trust instrument contains provision which (however expressed) permits the trustees to retain or invest in securities payable to bearer without appointing a person to act as a custodian.
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(3) An appointment under this section must be in or evidenced in writing.
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(4) This section does not apply to any trust having a custodian trustee.
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| Persons who may be appointed as nominees or custodians. |
19. - (1) A person may not be appointed under section 16, 17 or 18 as a nominee or custodian unless one of the relevant conditions is satisfied.
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(2) The relevant conditions are that-
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(a) the person carries on a business which consists of or includes acting as a nominee or custodian; |
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(b) the person is a body corporate which is controlled by the trustees. |
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(3) The question whether a body corporate is controlled by trustees is to be determined in accordance with section 840 of the Income and Corporation Taxes Act 1988.
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(4) The trustees of a charitable trust which is not an exempt charity must act in accordance with any guidance given by the Charity Commissioners concerning the selection of a person for appointment as a nominee or custodian under section 16, 17 or 18.
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(5) Subject to subsections (1) and (4), the persons whom the trustees may under section 16, 17 or 18 appoint as a nominee or custodian include-
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(a) one of their number, if that one is a trust corporation, or |
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(b) two (or more) of their number, if they are to act as joint nominees or joint custodians. |
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(6) The trustees may under section 16 appoint a person to act as their nominee even though he is also-
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(a) appointed to act as their custodian (whether under section 17 or 18 or any other power), or |
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(b) authorised to exercise functions as their agent (whether under section 11 or any other power). |
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(7) Likewise, the trustees may under section 17 or 18 appoint a person to act as their custodian even though he is also-
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(a) appointed to act as their nominee (whether under section 16 or any other power), or |
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(b) authorised to exercise functions as their agent (whether under section 11 or any other power). |
| Terms of appointment of nominees and custodians. |
20. - (1) Subject to subsection (2) and sections 29 to 32, the trustees may under section 16, 17 or 18 appoint a person to act as a nominee or custodian on such terms as to remuneration and other matters as they may determine.
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(2) The trustees may not under section 16, 17 or 18 appoint a person to act as a nominee or custodian on any of the terms mentioned in subsection (3) unless it is reasonably necessary for them to do so.
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(3) The terms are-
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(a) a term permitting the nominee or custodian to appoint a substitute; |
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(b) a term restricting the liability of the nominee or custodian or his substitute to the trustees or to any beneficiary; |
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(c) a term permitting the nominee or custodian to act in circumstances capable of giving rise to a conflict of interest. |
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Review of and liability for agents, nominees and custodians etc. |
| Application of sections 22 and 23. |
21. - (1) Sections 22 and 23 apply in a case where trustees have, under section 11, 16, 17 or 18-
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(a) authorised a person to exercise functions as their agent, or |
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(b) appointed a person to act as a nominee or custodian. |
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(2) Subject to subsection (3), sections 22 and 23 also apply in a case where trustees have, under any power conferred on them by the trust instrument-
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(a) authorised a person to exercise functions as their agent, or |
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(b) appointed a person to act as a nominee or custodian. |
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(3) If the application of section 22 or 23 is inconsistent with the terms of the trust instrument, the section in question does not apply.
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| Review of agents, nominees and custodians etc. |
22. - (1) While the agent, nominee or custodian continues to act for the trust, the trustees-
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(a) must keep under review the arrangements under which the agent, nominee or custodian acts and how those arrangements are being put into effect, |
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(b) if circumstances make it appropriate to do so, must consider whether there is a need to exercise any power of intervention that they have, and |
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(c) if they consider that there is a need to exercise such a power, must do so. |
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(2) If the agent has been authorised to exercise asset management functions, the duty under subsection (1) includes, in particular-
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(a) a duty to consider whether there is any need to revise or replace the policy statement made for the purposes of section 15, |
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(b) if they consider that there is a need to revise or replace the policy statement, a duty to do so, and |
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(c) a duty to assess whether the policy statement (as it has effect for the time being) is being complied with. |
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(3) Subsections (3) and (4) of section 15 apply to the revision or replacement of a policy statement under this section as they apply to the making of a policy statement under that section.
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(4) "Power of intervention" includes-
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(a) a power to give directions to the agent, nominee or custodian; |
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(b) a power to revoke the authorisation or appointment. |
