‘Many people assume an LPA gives unlimited powers but, in reality, there are important legal limits to what your attorneys can and cannot do,’ says Cherilyn Ford, Wills and Later Life Advisor in the private client team at QualitySolicitors Parkinson Wright. ‘LPAs can offer huge peace of mind, but understanding what your attorneys can and cannot do helps families avoid misunderstandings later. A well drafted LPA, with clear instructions and good communication, will ensure attorneys can act confidently and always in your best interests.’
Cherilyn explains what an LPA does not cover, how attorneys must act, and the safeguards that exist to protect you.
What is covered by a lasting power of attorney?
LPAs come in two forms: the LPA for property and financial affairs and the LPA for health and welfare, each with distinct roles and activation points:
- The LPA for property and financial affairs allows your attorneys to manage your money, pay bills, access bank accounts, deal with investments, or sell property. Crucially, you can choose whether this LPA is used straight away (even while you still have mental capacity) or only in the event that you lose capacity. Most people choose immediate use to make life easier for family or to receive help with financial administration.
- The LPA for health and welfare is more tightly controlled. It only comes into effect when you lack mental capacity to make a particular decision. Under this LPA, attorneys can make decisions about your daily care, medical treatment, social activities, and where you should live. Importantly, the document also asks you to decide whether your attorneys should have authority to make decisions about life-sustaining treatment. You can choose to give them the final say or keep that decision with the medical team. This section of the document can significantly affect how decisions are made in emergency situations, which is why clarity is essential.
Despite giving broad authority in these areas, both types of LPA are governed by strict rules under the Mental Capacity Act 2005, requiring attorneys to involve you as far as possible and to act solely in your best interests.
Which decisions can never be made by your attorneys
Even with an LPA in place, there are clear legal boundaries to what attorneys are allowed to do.
Wills
They cannot make or change your will. Only you can sign a will, and only the Court of Protection can authorise a statutory will if you have lost mental capacity and one is needed. Attorneys cannot alter existing wills, update beneficiaries, or make decisions that attempt to mirror estate planning.
Marital status and voting
Attorneys cannot make decisions relating to marriage, civil partnership, or voting on behalf of the individual. These are deeply personal decisions and can only ever be made by the individual, regardless of capacity.
Which decisions cannot be made without consulting you?
Your attorneys cannot act contrary to the Mental Capacity Act or Code of Practice. Even well-meaning decisions can be unlawful if they fail to follow the proper process or ignore the principle that decisions must be made in the donor’s best interests.
Health and welfare care
A health and welfare LPA only comes into effect when you are no longer able to make the relevant decision yourself. Capacity is decision-specific, so even if you need help with some major decisions, for example about medical treatment or where you live, you may still be able to make everyday choices such as what you eat or how you spend your time. In those situations, your wishes must still be followed.
Medical decisions often cause uncertainty. Some people assume attorneys automatically have the right to decide whether life-sustaining treatment should be given or refused. This is incorrect. Attorneys only have this authority if it is expressly granted in the LPA for health and welfare. Without this explicit permission, doctors, guided by the Mental Capacity Act, make the final decision in the patient’s best interests.
Property and finances
A property and financial affairs LPA can be used sooner, if you have authorised this in the document but, even then, your attorneys must step back whenever you are capable of making your own decisions. Their role is to support you and not to substitute their judgement for yours while you still have capacity.
They cannot act outside your instructions or restrictions. Many people include tailored preferences in their LPAs for example, requiring two attorneys to act jointly on a property sale or setting limits on investments. Attorneys must follow these restrictions without exception.
Which decisions cannot be made without approval by the Court of Protection
Gifts
Attorneys cannot make substantial gifts unless legally permitted. Large gifts, transfers of assets to family, or attempts to reduce inheritance tax without approval can amount to financial abuse, even if made with good intentions.
Attorneys may make small, customary gifts such as birthday or Christmas presents, but only if these are reasonable and affordable for you. Anything more substantial requires Court of Protection approval.
Families sometimes assume that making generous gifts or transferring property is permissible ‘because it’s what Mum would have wanted’. But the law takes a stricter view; without Court approval, such gifts may be unlawful, even if intended to be helpful.
For example, if your mother has lost capacity and her attorney decides to transfer £50,000 of her savings to a grandchild to ‘help them buy their first home’, this would normally be outside the attorney’s powers. Even if the family believes she would have liked to help, the law treats this as a gift that requires Court of Protection approval.
The Court of Protection’s role
The Court of Protection exists to safeguard people who lack capacity. Its involvement may be required if a decision needs to go beyond the authority granted by an LPA.
Common examples include authorising significant gifts, approving a statutory will where the existing will is no longer suitable, and authorising a property sale or transaction where the attorney has a conflict of interest (for example, if the sale involves the attorney or a family member). In all these situations, you must apply to the Court of Protection for authorisation to proceed.
Court applications take significant time and involve providing detailed evidence. Having a solicitor guide you through the process can ensure the correct approach is taken and reduce the stress on families during what is often a difficult period.
Staying within the rules
In all cases, attorneys should keep detailed records, noting what was decided, why, and how the decision aligned with the donor’s best interests. This protects both the donor and the attorney.
Being an attorney carries significant legal responsibility. The Mental Capacity Act 2005 and its Code of Practice provide a clear framework, setting out how decisions must be approached, including the requirement to:
- consider the donor’s wishes and feelings;
- choose the option least restrictive of the donor’s rights;
- consult relevant family members and professionals; and
- keep the donor involved wherever possible.
Failure to follow these principles can lead to investigation by the Office of the Public Guardian. In serious cases, attorneys may be removed, ordered to repay misused funds, or prohibited from acting again. Most issues arise not from deliberate wrongdoing, but from misunderstanding the limits of the role.
Good legal advice and a clear, a well-prepared LPA can prevent the vast majority of problems.
How we can help
We support clients in drafting LPAs that reflect their wishes clearly and unambiguously. This includes setting out preferences, restrictions, guidance for attorneys, and instructions around life-sustaining treatment. A well drafted LPA not only protects you but also gives your attorneys the clarity they need to act confidently.
We also advise attorneys on their duties, help them navigate complex decisions, and assist families when issues arise - whether that involves concerns about gifting, decisions around care, disputes between attorneys, or potential Court of Protection involvement.
Our aim is always to provide clarity, reassurance and legally sound guidance, ensuring that decisions are made responsibly, sensitively and within the law.
For clear, practical advice about LPAs or support with attorney responsibilities, contact Cherilyn Ford or a member of our private client team on 01905 721600. Offices in Worcester, Droitwich, Evesham and St Johns.
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.