On 18/06/2013,
you requested for the version in force on 18/06/2013
incorporating all amendments published on or before 18/06/2013.
The closest version currently available is that of 01/03/2012.
Review of and liability for agents, nominees and custodians, etc.
Application of sections 41M and 41N
41L.
—(1) Sections 41M and 41N shall apply in a case where trustees have, under section 41B, 41G, 41H or 41I —
(a)
authorised a person to exercise functions as their agent; or
(b)
appointed a person to act as a nominee or custodian.
[45/2004]
(2) Subject to subsection (3), sections 41M and 41N shall also apply in a case where trustees have, under any power conferred on them by the trust instrument or by any written law —
(a)
authorised a person to exercise functions as their agent; or
(b)
appointed a person to act as a nominee or custodian.
[45/2004]
(3) If the application of section 41M or 41N in a case is inconsistent with the terms of the trust instrument or any written law, that section shall not apply to that case.
[UK Trustee 2000, s. 21]
[45/2004]
41M.
—(1) While the agent, nominee or custodian continues to act for the trust, it shall be the duty of the trustees —
(a)
to keep under review the arrangements under which the agent, nominee or custodian acts and the manner in which such arrangements are being put into effect;
(b)
if circumstances make it appropriate to do so, to consider whether there is a need to exercise any power of intervention that they have; and
(c)
if they consider that there is a need to do so, to exercise the power of intervention.
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(2) If the agent has been authorised to exercise asset management functions, the duty under subsection (1) shall include, in particular —
(a)
a duty to consider whether there is any need to revise or replace the policy statement made for the purposes of section 41F;
(b)
if the trustees consider that there is a need to revise or replace the policy statement, a duty to do so; and
(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) Section 41F(3) and (4) shall 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) In this section, “power of intervention” includes —
(a)
a power to give directions to the agent, nominee or custodian; and
(b)
a power to revoke the authorisation or appointment of the agent, nominee or custodian.
[[UK Trustee 2000, s. 22] ]
[45/2004]
41N.
—(1) A trustee shall not be liable for any act or default of the agent, nominee or custodian unless he fails to comply with the statutory duty of care applicable to him under paragraph 3 of the First Schedule when —
(a)
entering into the arrangements under which the person acts as agent, nominee or custodian; or
(b)
carrying out his duties under section 41M.
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(2) If a trustee has agreed to a term under which the agent, nominee or custodian is permitted to appoint a substitute, the trustee shall not be liable for any act or default of the substitute unless he has failed to comply with the statutory duty of care applicable to him under paragraph 3 of the First Schedule —
(a)
when agreeing to that term; or
(b)
when carrying out his duties under section 41M in so far as they relate to the use of the substitute.
[[UK Trustee 2000, s. 23] ]
[45/2004]