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  • Overview

    The Office of the Public Guardian (OPG) has confirmed that they will change their guidance regarding financial Lasting Powers of Attorney (LPAs), so that attorneys can delegate investment decisions to a discretionary manager without an express provision in the LPA or a court order. 

    Since 2015 the OPG's guidance has stipulated that attorneys under a financial LPA are unable to invest via a discretionary management fund unless the LPA includes an express provision. Discretionary management allows investment decisions, such as buying and selling shares, to be made by regulated professionals without prior authorisation.  This enables investment managers to take advantage of a good investment opportunity and to buy and sell investments quickly to prevent risk of loss. 

    The problem is that prior to 2015, many financial LPAs and Enduring Powers of Attorney didn’t contain this express provision. If the donor (the person making the LPA) still had capacity, they could revoke their existing LPA or Enduring Power of Attorney and make a new LPA including the provision.  However, where the donor had lost capacity to make a new LPA, the attorney would have to apply to the Court of Protection to obtain retrospective authority. This was not a practical option, as a court application is a lengthy and expensive process. The delay could cause loss to the donor’s investments.

    The Law Society of England and Wales and The Society of Trust and Estate Practitioners (STEP) have both welcomed the news that the OPG’s view has changed. 

    Whilst it is not yet clear when the OPG will update their written guidance, we understand that in the interim period this verbal confirmation will be sufficient for an attorney needing to instruct a discretionary investment manager.

  • Related Services

    Court of Protection & Deputyship

    We have one of the largest nationally recognised specialist Court of Protection teams in the country, offering practical advice and personal service in situations where someone needs help managing their finances.

    Later life planning

    Our team of specialist lawyers has a wealth of knowledge and experience in providing advice on the law as it affects your later life. We pride ourselves on offering sympathetic and practical advice to our clients.

    Lasting Powers of Attorney (LPA)

    Lasting Powers of Attorney offer security and peace of mind for you and your family.

Newsletter sign up

I would like to receive newsletters, event invitations and publications from Thomson Snell & Passmore by email on the following topics (tick all those that apply) and consent for my data to be processed for this purpose.

We respect your privacy and want news to be relevant. To either, click here or update your preferences by emailing us at info@ts-p.co.uk. Your personal data shall be treated in accordance with our & .

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By submitting an enquiry through 'get in touch' your data will only be used to contact you regarding your enquiry. If you would like to receive newsletters from Thomson Snell & Passmore please use the separate form below.

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Jargon Buster