When you make a Lasting Power of Attorney, there is scope to give guidance for your attorneys about how you would like them to exercise their powers. Many people decide not to fetter their attorneys’ discretion in any way, and to give them carte blanche to do whatever they deem necessary in exercising their powers under the Lasting Power of Attorney. However, if you wish, it is perfectly possible to be more prescriptive and to include (non-binding) ‘preferences’ and (binding) ‘instructions’ to give your attorneys some guidance.
I find that in practice, very detailed guidance is usually most relevant for clients who are appointing non-family members as their attorneys, who will typically have less comprehensive background knowledge of the person’s preferences, but it can apply to anyone.
Below I have described some commonly-found preferences and instructions for attorneys, which are worth considering for anyone making their Lasting Powers of Attorney (LPAs).
Guidance for attorneys for property and finances
Many attorneys do not have the necessary investment expertise to invest their loved one’s money without professional guidance, and will choose to instruct an investment manager to carry out this important work, if one is not already appointed. In a lasting power of attorney for property and finances, clients may include a clause authorising discretionary investment management, to give their attorneys as much flexibility as possible. This means that if the client has a portfolio of investments which are managed by an investment manager on a discretionary basis, the manager will be able to continue to do their job in the usual way even if the person loses capacity.
Even if the client does not have a portfolio held an a discretionary basis currently, arguably it is still a good idea to include the clause anyway, in case in future for example their house is sold and the attorneys need to invest the resulting funds.
Historically, there has been a question mark over discretionary investment management and LPAs, because there is a double delegation, first from the person creating the deed to the attorney, and then from the attorney to the investment manager. The law does not usually permit double delegation, unless it is explicitly authorised. Last year, the Office of the Public Guardian revised its guidance on discretionary investment management clauses, setting out that discretionary investment management by attorneys is permissible regardless of the relevant clause being included in an LPA. Nonetheless, I usually still suggest including the clause authorising discretionary investment management in any case, for the avoidance of doubt.
Guidance for attorneys for health and welfare
In a lasting power of attorney for health and welfare, it is possible to give guidance to your attorneys about, for example, where you would want to live, how you would want to be cared for and medical treatment.
In particular, although euthanasia is of course illegal in this country, I find that many clients take the opportunity to guide their attorneys in the direction of not keeping them alive at all costs, in the event that they were terminally ill and experiencing a very poor quality of life. There is a fine line to be walked here legally, but the Office of the Public Guardian advises in its guidance that (a) it will accept a request from the person who has granted the LPAs that if they were in the last days of a terminal illness, they should not be given treatment to prolong their life nor that meant they could not die at home, and (b) they may instruct their attorneys that if they were in a persistent vegetative state, the attorneys may not authorise life-sustaining treatment.
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