What is it?
A Power of Attorney (PoA) is where one person (known as the donor) gives another person (known as the donee or attorney) authority to act on their behalf or manage their affairs, both on a personal wellbeing or financial basis. A donor can authorise a decision on their behalf (treated as if the donor made the decision themselves). It is a legal process, under the respective law which facilitates this authority transfer. There are various types of PoA’s, which include:
- Lasting (LPA)
- Enduring (EPA)
The type of PoA determines when this agreement needs to be registered. Some will need to be done before the donor has lost capacity and some as they are losing capacity.
Power of Attorney for Discretionary Fund Managed Portfolios
Problems can occur if the PoA has been drawn up and it doesn’t include a clause that deals with discretionary portfolio management. This is an issue which can be noticed too late, so it’s a good idea to get agreements in place early.
In 2015, The Office of Public Guardian (OPG) issued guidance on the completion of Power of Attorney documents, in respect of accounts that
are discretionary managed. As this is classed as guidance, it is down to the individual companies to decide how to apply this guidance.
If the attorney is opening a discretionary managed portfolio on behalf of the donor, the LPA/EPA must contain specific wording to confirm that the attorney has authority to delegate investment powers to a Discretionary Fund Manager.
The 2015 OPG guidance stated specifically that a PoA document must have an instruction from the donor in section 7 of the LPA/EPA, in relation to Discretionary Managed (DM) Investment Portfolios. This is also applicable to Ordinary POA.
This applies if the donor:
- Has existing investments managed on a discretionary basis by a financial institution and they want this to continue; or
- They would like their attorney to have the power to instruct a financial institution to manage the donor's investment on a discretionary basis.
“My attorney may transfer my investments into a discretionary management scheme. 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.”
So whether you already have a Power of Attorney in place or are making one, please check that if appropriate this wording is included. Please do not hesitate to discuss this matter further with your Financial Adviser if you have any queries.
The value of an investment with Rowan Dartington may fall as well as rise. You may get back less than the amount invested.
Please note that advice relating to a PoA will involve the referral to a service that is separate and distinct to those offered by Rowan Dartington.
PoA’s are not regulated by the Financial Conduct Authority.