Mum and Dads estate (they are still alive)

silvercar

No, the attorney has to act in the best interests of the donor, not their child. In some cases, like the other example I gave or where there may be a conflict of interest, it would be best to get the Court of Protection to decide. The other example I gave was:

When there is no difference to the donor eg they need money for care, so it doesn't matter where it comes from. The attorney presumeably has free rein whether it comes from the sale of a property or the cashing in of premium bonds, though they could argue that the money would be easier to access from PBs.

If the attorney had no knowledge of the will, they couldn't be accused of bias. With knowledge they may feel they have the need to refer to the Court of Protection.

Dead_keen

If the attorney had no knowledge of the will, they couldn't be accused of bias.

Yep. But is the attorney having no knowledge in the best interest of the donor?

elsien

If they chose not to share that information when they had capacity, not sure anything much has changed in the interim. Wills deal with what happens after you die, LPA deals with what happens before you die.
it pretty much is that simple.

poseidon1

https://forums.moneysavingexpert.com/discussion/comment/82122976#Comment_82122976

Hopefully OP will confirm whether or not they eventually got sight of the wills.

It would help them to know in advance if an IPDI trust for surviving spouse is to be established on death of 1st spouse, and how the complexities of such a trust may affect their attorney duties for that survivor when the time comes.

It is clear from the posts we recieve on this forum, that the vast majority of people who find themselves having to deal with such trusts are totally clueless of the administrative and tax implications their parents ( with good intentions) lumbered them with. Forewarned is forearmed in my view.

Malthusian

Does that mean, with the knowledge of the will (though this could be changed if the donor has capacity, the attorney has absolute choice whether to cash the premium bonds to repair the roof or use other funds?

The first duty of the attorney is to manage the money in the donor's interest. The second duty is to manage their money as they would have themselves, if it doesn't contradict the first.

In the hypothetical scenario with the appallingly-drafted Will my first instinct would be to draw from the Premium Bonds and cash in proportion, on the basis that the donor would probably want neither to be disadvantaged. However, a lot depends on the circumstances. For example, if the donor had surplus income and the cash pile was expected to increase, I would be inclined to draw from the cash only. The £10k that the donor wanted the nephew to have would be preserved and the children would not be disadvantaged as they would expect their share to grow over time.