Following guidance and suggested wording issued by the Office of the Public Guardian with regards to Discretionary Fund Management (DFM), we looked at this in great detail and continued to review the situation. WillPack along with a number of other organisations took the decision not include the instruction due to uncertainty around the issue.
Having taken further legal and professional advice after talking to a number of our IFA’s, we will now be issuing a new LPA instruction form to include the DFM instruction as a yes or no option. However, caution will need to be taken as The Office of the Public Guardian cannot guarantee that the bank/ organisation will accept the suggested wording and it is advisable that the donor contacts the bank/ discretionary investment manager to confirm in writing that they will accept the wording; or they seek their own legal advice as appropriate before the LPA is registered. This will minimise any difficulties in the attorneys using LPA for this reason should the donor lose capacity.
Currently, if an LPA has been registered without the instruction included and the donor wishes to include the DFM instruction, the current LPA would need to be revoked and a new LPA put in its place. The same if the donor later decides to remove the instruction in a registered LPA.
The optional instruction will read:
“My attorney(s) may transfer my investments into a discretionary management scheme. Or, if I already had investments in a discretionary management scheme before I lost capacity to make financial decisions, I want the scheme to continue. I understand in both cases that managers of the scheme will make investment decisions and my investments will be held in their names or the names of their nominees”
Please note that WillPack is unable to give further advice or provide financial advice on this matter nor will accept any liability as such instruction is required to be discussed with the donor before it can be included.
Our amended LPA instruction form is now available on the members area of our website or please contact us for a copy.