Apologies if this topic has come up recently. The issue here is that OPG guidance suggests that if an attorney wishes to arrange or continue the management of the donor’s investments with a stockbroker/bank/investment manager on a discretionary basis then this must be specifically authorised in the Instructions section of the LPA (as the attorney cannot delegate their authority). Increasingly, investment managers are refusing to continue to act on a discretionary basis without such authorisation in the LPA.
Currently, it seems that there are the following options:
The Donor can make a new LPA including the necessary authorisation provided that the Donor still has sufficient capacity to do so,
Switch the management of the investments to an advisory basis (which some managers will not do - in which case it seems to me that you would need to switch to a manager that would act on an advisory basis)
Apply to the Court of Protection for authority for the investments to be managed on a discretionary basis.
There was some suggestion in a STEP blog in Oct 2016 that STEP were going to consider taking a test case on this point as to whether the OPG guidance was correct. Does anyone know if such a case has ever been brought?
I would also be interested to know if anyone has found any other solutions than the 3 mentioned above.
MacDonald Oates LLP