Being asked to act as someone’s attorney under a Lasting Power of Attorney (LPA) is often seen as an honour. It is certainly a position of trust. However, many people accept the role without fully appreciating the legal responsibilities they are taking on or the serious consequences if they make mistakes.
It is also important that the attorney is aware of when their authority starts and any conditions or wishes the donor (person whose LPA it is) may have added to the form. If you always act in their best interests, consult they as much as is reasonably practicable and no one else’s, that is a great start.
And remember, the donor can make unwise decisions.
The Responsibilities and Risks of Being an Attorney Under a Lasting Power of Attorney
Whether acting under a Property and Financial Affairs LPA or a Health and Welfare LPA, an attorney must always act in the donor’s best interests and comply with the requirements of the Mental Capacity Act 2005. Failure to do so can lead to investigation, removal as attorney, repayment of money, civil claims and, in serious cases, criminal prosecution. (GOV.UK)
The Attorney’s Fundamental Duty
Regardless of which type of LPA is involved, every attorney has a number of legal duties.
They must:
- Always act in the donor’s best interests.
- Help the donor make their own decisions wherever possible.
- Only make decisions the LPA authorises.
- Keep the donor’s affairs separate from their own.
- Avoid conflicts of interest.
- Keep appropriate records of important decisions.
- Follow the principles set out in the Mental Capacity Act 2005 and its Code of Practice. (SCIE)
The attorney is not allowed to do whatever they think is easiest or what benefits the family. Their duty is solely to the donor.
This type of attorney has authority over money, investments, property and financial matters.
Because they often have access to bank accounts and valuable assets, they face the greatest legal risks.
Property and Financial Affairs Attorneys
Common Responsibilities
A Property and Financial Affairs attorney may:
- Pay bills.
- Manage bank accounts.
- Deal with pensions and benefits.
- Buy or sell property where authorised.
- Arrange repairs and maintenance.
- Manage investments.
- Complete tax returns.
- Keep accurate financial records.
Every financial decision must benefit the donor.
Common Mistakes
Many investigations begin because attorneys unintentionally cross the line.
Examples include:
Treating the donor’s money as family money
An attorney cannot simply borrow money or help themselves because:
- “I’ll pay it back later.”
- “I expect to inherit anyway.”
- “Mum always said I could.”
None of these are legal.
Mixing bank accounts
The donor’s money should never be mixed with the attorney’s own finances.
Making gifts
Attorneys have only very limited powers to make gifts.
Reasonable birthday or Christmas gifts may be acceptable if they are affordable and consistent with previous habits.
Large gifts, transferring property, reducing inheritance tax, or helping children financially usually require approval from the Court of Protection.
Selling property below market value (fraud)
Property must normally be sold for proper market value.
Selling cheaply to relatives or friends is likely to be challenged.
Paying themselves
Attorneys cannot simply decide to pay themselves wages, expenses beyond genuine costs, or “thank you” payments unless specifically authorised. Under some circumstances such payment may be authorised by the Court of Protection/
Failing to keep records
One of the quickest and most common ways to create suspicion is having no paperwork.
Attorneys should retain:
- bank statements – and I would suggest notes against each item of expenditure.
- invoices
- receipts
- care bills
- records of major decisions
If challenged years later, they may need to explain every significant transaction.
Health and Welfare Attorneys
People often assume this LPA gives unlimited authority over medical care.
It does not.
In fact, Health and Welfare attorneys usually have less day-to-day authority than financial attorneys.
Their powers generally arise only once the donor lacks capacity to make the particular decision themselves. (GOV.UK)
Typical Responsibilities
A Health and Welfare attorney may help decide:
- where someone lives (in my mind, this is crucial – as Local Authority budgets shrink, the prospect of cheap but good care homes in Rwanda might arise!)
- care arrangements
- daily routines
- social activities
- medical treatment
- care home choices
- life-sustaining treatment (if specifically authorised)
Common Problems
Ignoring the donor’s wishes
Attorneys must consider:
- previous wishes
- beliefs
- values
- written statements
- discussions held before capacity was lost
They cannot simply impose their own opinions.
Family disputes
Health decisions frequently divide families.
An attorney’s legal authority overrides relatives’ opinions provided they are acting lawfully and in the donor’s best interests.
Refusing treatment without authority
Unless the LPA specifically gives authority over life-sustaining treatment, attorneys cannot refuse such treatment.
Overriding professionals
Doctors remain responsible for clinical decisions.
Attorneys participate in decision-making but cannot demand inappropriate or unlawful treatment.
What Happens If Things Go Wrong?
Fortunately, the vast majority of attorneys act honestly.
However, concerns sometimes arise.
Anyone can report concerns to the Office of the Public Guardian (OPG), including:
- relatives
- neighbours
- care workers
- banks
- solicitors
- social services
- medical professionals
- members of the public. (GOV.UK)
The Office of the Public Guardian Investigation
If concerns are raised, the OPG may:
- request financial records
- ask the attorney to explain transactions
- interview family members
- contact banks
- obtain medical information
- visit the donor
- require formal accounts
- refer the matter to the Court of Protection. (GOV.UK)
Many investigations begin simply because records cannot be produced.
Poor administration can look very similar to dishonesty.
Possible Consequences
If wrongdoing is discovered, the attorney may face one or more of the following.
Removal as Attorney
The Court of Protection can remove an attorney and appoint a deputy instead.
Repayment of Money
If money has been misused, the attorney may have to repay it personally.
Compensation
They may also be ordered to compensate the donor for financial losses.
Civil Court Proceedings
Family members or deputies may bring claims against former attorneys.
Criminal Investigation
Where theft, fraud or financial abuse is suspected, matters may be referred to the police.
Possible offences include:
- theft
- fraud
- forgery
- abuse of position
- financial abuse of a vulnerable person. (GOV.UK)
Absolutely.
Can Attorneys Protect Themselves?
Acting with integrity, and always putting the donors’ interests first and your own nowhere is a great start. Never make a decision which they could have made themselves had you bothered to explain it carefully.
Is the decision vitally urgent? Might the donor be able to make it given time and your support? Or is it so vital that it simply must be made NOW or the donors’ interests will suffer?
Good attorneys should:
- keep detailed records
- obtain receipts
- write down important decisions
- avoid conflicts of interest
- seek professional advice when unsure
- involve other family members where appropriate
- remember that transparency prevents suspicion
If faced with an unusual decision—such as making large gifts, selling assets to relatives, or dealing with conflicts of interest—it is often wise to seek legal advice or, where necessary, ask the Court of Protection for approval before proceeding. (UKLPA.co.uk)
The Importance of Choosing the Right Attorney
Many people choose their eldest child or closest relative automatically.
That is not always the best choice and is one of the main areas where intelligent professional advice (call me!) can make a massive difference.
The ideal attorney should be:
- trustworthy
- organised
- financially responsible
- willing to keep records
- able to make difficult decisions
- capable of standing up to family pressure
- prepared to put the donor’s interests first at all times
Being an attorney is far more than signing forms or helping with the odd bank visit. It is a legal office carrying significant responsibilities.
Final Thoughts
A Lasting Power of Attorney is one of the most valuable legal documents a person can make, but it only works well if the right attorneys are chosen and they understand their duties.
For most attorneys, acting honestly, keeping good records and always asking, “Is this really in the donor’s best interests?” will keep them on the right side of the law.
Those who abuse their position—or simply fail to understand the responsibilities they have accepted—may find themselves answering not only to the Office of the Public Guardian, but also to the Court of Protection and, in the most serious cases, the criminal courts.
These are my thoughts; the Law is a complex beast, and one judge’s interpretation of the rules under which Lasting Powers of Attorney operate may differ from another’s. Attorneys, be cautious and just ask yourself what the person you are helping would do if they were making the decision.
Steve Pett 01323 766766