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Attorney Powers and Limitations

Also known as: LPA Powers, Attorney Authority

Definition

Attorney powers and limitations define what attorneys appointed under a Lasting Power of Attorney can and cannot do on behalf of the donor who appointed them.

Understanding these boundaries is essential for donors creating an LPA, attorneys accepting the role, and family members monitoring an attorney's actions to protect vulnerable adults.

What Does Attorney Powers and Limitations Mean?

Under the Mental Capacity Act 2005, attorneys appointed under a Lasting Power of Attorney (LPA) receive legal authority to make decisions on the donor's behalf, but this authority comes with significant limitations. There are two distinct types of LPA—Property and Financial Affairs, and Health and Welfare—each with different powers and restrictions. All attorney powers must be exercised in the donor's best interests, following the principles set out in Section 1 of the Mental Capacity Act 2005.

Property and Financial Affairs attorneys can manage the donor's money, property, and financial decisions once the LPA is registered. With the donor's permission, they can act while the donor still has capacity. Their powers include managing bank accounts, paying bills, collecting pensions and benefits, buying and selling property at market value, and maintaining the donor's home. However, Section 12 of the Mental Capacity Act 2005 strictly limits gift-giving to customary occasions (birthdays, weddings, Christmas, religious holidays) where the gift value is reasonable relative to the estate size. For example, a £100 birthday gift from a £400,000 estate might be reasonable, but a £20,000 gift for inheritance tax planning would require Court of Protection approval. Attorneys cannot change the donor's will, make investments requiring specialist knowledge without express authorization, or act beyond the powers specified in the LPA document.

Health and Welfare attorneys face a fundamental restriction: they can only make decisions when the donor lacks mental capacity for that specific decision. This differs significantly from Property and Financial Affairs LPAs. Even when registered, a Health and Welfare attorney cannot override the donor's wishes if the donor has capacity to make that particular decision. Their powers include decisions about where the donor lives, daily care routines, medical treatment consent, and healthcare arrangements. However, they cannot insist doctors provide treatment the doctor considers inappropriate, override the donor's advance decisions to refuse treatment (unless the LPA was made later and specifically covers the same treatment), or make decisions about life-sustaining treatment unless the LPA includes express authorization for this. Both types of attorney must follow any specific restrictions or conditions the donor included in the LPA document, and both face oversight from the Office of the Public Guardian, which can investigate concerns and apply to the Court of Protection to remove attorneys who exceed their powers.

Common Questions

"What can an attorney do under a Property and Financial Affairs LPA?" An attorney under a Property and Financial Affairs LPA can manage bank accounts, pay bills, collect pensions and benefits, buy and sell property (at market value), and maintain the donor's home. However, they cannot make large gifts beyond customary occasions, change the donor's will, or make decisions outside their specified authority without Court of Protection approval.

"Can an attorney give gifts using the donor's money?" Yes, but with strict limitations under Section 12 of the Mental Capacity Act 2005. Attorneys can only make gifts on customary occasions (birthdays, weddings, Christmas, religious holidays) to family, friends, or charities the donor would have supported. The gift value must be reasonable relative to the donor's estate—a £50 gift from a £300,000 estate is acceptable, but a £15,000 gift would require Court of Protection approval. This protects vulnerable donors from financial exploitation.

"When can a Health and Welfare LPA attorney make decisions?" A Health and Welfare LPA can only be used when the donor lacks mental capacity to make specific decisions themselves. Unlike Property and Financial Affairs LPAs, which can be used while the donor has capacity (with permission), Health and Welfare attorneys cannot override the donor's wishes if the donor is still capable of making that particular decision. Capacity is assessed for each specific decision, not as a blanket determination.

Common Misconceptions

Myth: An attorney under an LPA can do anything the donor could do—they have complete authority over the donor's affairs.

Reality: Attorneys face significant legal restrictions even within their area of authority. Property and Financial Affairs attorneys cannot make large gifts beyond reasonable customary occasions, change the donor's will, or make complex investment decisions without express authorization. Health and Welfare attorneys cannot override the donor's advance decisions to refuse treatment, cannot insist doctors provide treatment the doctor considers inappropriate, and cannot make decisions while the donor has capacity. Both types must follow any restrictions the donor included in the LPA document.

Myth: If I appoint my spouse as attorney, they can give our children large gifts or loans from my money to reduce inheritance tax.

Reality: Section 12 of the Mental Capacity Act 2005 strictly limits gift-giving to gifts on customary occasions (birthdays, weddings, Christmas, religious holidays) to family, friends, or charities the donor might have supported, where the value must be reasonable having regard to the donor's estate. A £500 gift to an adult child for their birthday from a £500,000 estate might be reasonable, but a £50,000 gift for inheritance tax planning would require Court of Protection approval. While a person with capacity can give away their estate freely, attorney gift-giving powers are intentionally restricted to protect vulnerable donors from exploitation.

  • Attorney: The person appointed to exercise these powers and who must stay within the limitations set by law and the donor.
  • Donor: The person who creates the LPA and grants these specific powers, and who can add restrictions and conditions beyond statutory limitations.
  • Restrictions and Conditions: Donor-imposed limitations that further restrict attorney powers beyond the statutory limitations set out in the Mental Capacity Act 2005.
  • Property and Financial Affairs LPA: One type of LPA with powers to manage finances and property, which can be used once registered while the donor has capacity.
  • Health and Welfare LPA: The other type of LPA with powers over healthcare and care decisions, which can only be used when the donor lacks capacity.

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Legal Disclaimer:

This article provides general information only and does not constitute legal or financial advice. WUHLD is not a law firm and does not provide legal advice. Laws and guidance change and their application depends on your circumstances. For advice about your situation, consult a qualified solicitor or regulated professional. Unless stated otherwise, information relates to England and Wales.