Q&As

Can an LPA attorney enter into a deed of variation of a deceased’s estate on behalf of the donor? If so, is this still the case where the donor is giving up his entire interest in the deceased’s residuary estate in favour of the attorney?

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Published on LexisPSL on 21/02/2017

The following Private Client Q&A provides comprehensive and up to date legal information covering:

  • Can an LPA attorney enter into a deed of variation of a deceased’s estate on behalf of the donor? If so, is this still the case where the donor is giving up his entire interest in the deceased’s residuary estate in favour of the attorney?
  • Powers of an LPA attorney
  • Duties of an LPA attorney
  • Fiduciary duties

Powers of an LPA attorney

Subject to any restrictions included by the donor in the LPA, the attorney under a Financial Affairs LPA will be able to do almost anything which the donor could have done for themselves in relation to his or her financial affairs. However, there are limits to the attorney’s power.

Entering into a deed of variation whereby the donor is giving up an interest is akin to the attorney making gifts on behalf of the donor. In general, an attorney has limited power to make gifts of the donor's assets. Gifts that are ‘reasonable’, having regard to the circumstances and the value of the size of the donor's estate, can be made by the attorney to persons (including the attorney) who are related to or connected with the donor on customary occasions (such as a birthday or marriage, for example) or to any charity to which the donor has made gifts in the past or might be expected to

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