In view of the OPG’s stance that an attorney cannot invest the donor’s money into a Discretionary Management Scheme without an express instruction to that effect in the LPA, is it good practice to include such an instruction which follows the OPG’s suggested wording in all financial LPA’s “just in case” the attorneys might want to invest in such a scheme?
Alexander Grace Law
We explain the potential problems to our clients and recommend that the wording is included. They generally agree.
Yes. I always put the DFM clause in. I don’t now bother with the one about seeing a copy of the Will since the Law Society Practice Note.
If the donor still has mental capacity and authorises the attorney to invest on their behalf in a DMS - does the wording need to be included in the LPA to cover the possibility that they might lose mental capacity in the future.
Bennett Smith Solicitors
If the Donor still has capacity the attorney would not need to be involved. The reason for the clause is because without it ongoing consent to the DMS cannot be presumed once capacity is lost and it would end, and certainly a new scheme could not be set up.