The do's and don'ts of attorneyship: A guide for LPA attorneys

Being appointed as an attorney for a friend, partner or family member under a Lasting Power of Attorney (LPA) is a significant responsibility – and accepting these duties is a decision that should not be made lightly.

Whether the LPA relates to an individual’s Property and Financial Affairs or Health and Welfare, it’s important to recognise you are stepping into a role that balances legal authority with important ethical duties, often requiring significant personal commitment.

Many people accept the role out of a sense of loyalty or affection for their loved one, but it’s not always easy to truly appreciate what this entails until they are in post.

In this guide, we’ll explore the essential ‘do’s and don’ts’ of attorneyship and outline some key considerations you should weigh carefully before agreeing to take on this role for a person who has anticipated future issues around mental capacity, and is putting the LPA in place as a result.

The person who puts the LPA in place is referred to as the ‘Donor’ and we will refer to them as such through the rest of this article.

The do’s of attorneyship: key principles for success

Do act in the Donor’s best interests at all times

The Mental Capacity Act 2005 (MCA) sets out the legal framework for decision making on behalf of someone who lacks mental capacity.

With every consideration you make, acting in the donor’s best interests will be your statutory duty. The Act sets out the specifics, but this will include:

• Considering the donor’s past and present wishes and feelings
• Taking into account their values, beliefs and preferences
• Weighing up all relevant circumstances
• Choosing the least restrictive option

These decisions should be evidence and process driven, not simply left to guesswork – and attorneys should be able to justify how they reached a decision (and ‘show their working’) if prompted.

Do involve the Donor as much as possible

Capacity is not an all or nothing proposition: it’s decision specific, and an individual’s ability to discern what’s right for them can fluctuate over time. For this reason, the law requires you to presume capacity unless proven otherwise.

In situations where the Donor does genuinely lack capacity for a particular decision, you must still support them to participate as far as they are able. This may involve:

• Explaining concepts and processes using clear language
• Breaking down larger decisions into smaller digestible steps
• Providing visual aids
• Choosing a quiet, familiar environment to discuss relevant issues

Do keep meticulous financial records

For Property and Financial Affairs attorneys, record keeping is one of the most important aspects of the role. You should maintain:

• Receipts, invoices and bank statements
• A running log of decisions and transactions
• Notes explaining why significant decisions were made

It’s critical to note that the Office of the Public Guardian (OPG) can request these records at any time – and so getting into the habit of retaining good documentation protects both you and the Donor over the long term.

Do understand the limits of your authority

Every individual and their situation is unique, and your specific powers over the Donor’s affairs will be outlined within LPA document itself.

Some decisions require specific authority or are prohibited altogether. For example:

• You cannot make large gifts without Court of Protection approval
• You cannot change the Donor’s Will
• You cannot make decisions about arrangements that may restrict the Donor’s liberty unless explicitly authorised

If in doubt, it’s always advisable to seek legal advice before acting.

Do consult with others where appropriate

Attorneyship is a significant undertaking and you are not expected to make decisions in isolation.

Consulting family members, carers, medical professionals or financial advisers can provide valuable insight into the Donor’s needs and wishes. Indeed, collaboration often leads to better outcomes and reduces the risk of disputes down the line.

Do seek professional advice when needed

With so much responsibility granted to them, attorneys’ actions are invariably held to an exacting standard by authorities.

If unsure about a legal, financial or medical issue, we always advise clients to obtain professional advice: it’s not only typically the simplest course of action, but in some cases it may be essential to ensure you are acting lawfully.

The don’ts of attorneyship: actions you must avoid

Don’t mix your finances with those of the Donor

This is one of the most common – and most serious – mistakes we’ve seen attorneys make.

Even if you intend to ‘pay it back later’, using the Donor’s money for your own purposes is unlawful and strictly forbidden.

To minimise the chances of this happening by mistake, you should always keep yours and the Donor’s accounts separate.

Don’t make gifts beyond what the law allows

Generally speaking, the MCA permits small, customary gifts on occasions such as birthdays or religious holidays (e.g. Christmas, Hanukkah or Eid) – and only if they are deemed affordable with the finances at the Donor’s disposal.

Larger gifts, including those intended for Inheritance Tax purposes, will require formal approval from the Court of Protection.

Don’t assume incapacity

As mentioned above, the Donor’s capacity for participation must be assessed for each decision. It is vital to note that capacity is fluctuating and therefore should be considered regularly.

The Donor may be able to decide what to wear or what to eat, but may not understand a complex financial transaction. Do not assume incapacity based on a diagnosis alone.

Don’t delegate your decision making authority

You may (and often should) seek advice from relevant third parties, but as the attorney acting for the Donor, the final decision must be yours.

In other words, you cannot pass your authority to someone else unless the LPA explicitly permits it (which is rare).

Don’t act prematurely

A Health and Welfare attorney is only permitted to make decisions once the Donor has lost capacity.

Even if the LPA arrangements were put in place some time ago, acting whilst the Donor is still deemed competent to make their own decisions can invalidate decisions and create legal complications.

Key considerations: should I accept the responsibility of attorneyship?

Time commitment

Attorneyship can be a time-consuming undertaking: managing finances, liaising with professionals, attending medical appointments and making best‑interest decisions all require ongoing involvement.

Whilst you may feel a strong desire to assist your loved one, it’s wise to consider whether you can realistically commit the time needed to do a good job in the role.

Emotional and relational pressures

Acting as an attorney can place you at the centre of sensitive family dynamics – and you may face disagreements, criticism or pressure from others.

Consequently, you must be prepared to act independently and prioritise the Donor’s interests over family preferences, even when this is unpopular with those around them.

Financial responsibility and potential liability

Attorneys are held to a fiduciary standard. If you make mistakes – especially regarding financial matters – you may be required to repay losses or could face formal investigation by the OPG.

This is no trivial issue and understanding the seriousness of the responsibility you’re agreeing to before proceeding is essential.

Understanding the legal framework

The Mental Capacity Act, LPA document and the Code of Practice all shape your role as an attorney.

While you don’t need to be a legal expert to follow these rules effectively, you must be willing to familiarise yourself with them and seek guidance when needed.

When to involve the Court of Protection

Certain decisions require court approval, including:

• Disputes between attorneys
• Significant gifts
• Complex financial arrangements
• Decisions about the Donor’s residence or care (especially where there is disagreement)

Knowing when to seek court involvement will help you manage the challenges of the role and prevent unlawful decision making.

Your own personal wellbeing

Supporting someone who lacks capacity can sometimes be an emotional process and attorneys often underestimate the personal toll the role can take.

For this reason, it’s important to recognise your own limits and not be afraid to seek specialist support when necessary.

How we can help

Our specialist solicitors have decades of combined experience helping attorneys navigate their duty of care towards their loved one with confidence.

Whatever guidance you need for your role, our friendly Court of Protection team can provide hands-on, personalised support – including but not limited to:

• Interpreting LPAs/clarifying your powers
• Assisting with best‑interest decision making
• Preparing and overseeing capacity assessments
• Managing disputes between attorneys and/or family members
• Making applications to the Court of Protection
• Ensuring your actions comply with MCA and OPG guidance

If you’re looking for expert support on how to manage your attorneyship responsibilities towards a vulnerable person in your care, our experienced Court of Protection team are here to help.

Get in touch by contacting 03333 058375 or via email at [email protected] today.