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Restrictions and Conditions (LPA)

Also known as: LPA Restrictions, Attorney Conditions

Definition

Restrictions and conditions are provisions you can add to a Lasting Power of Attorney that control what your attorneys must do, cannot do, or should consider when making decisions on your behalf.

These provisions allow you to maintain control over how decisions are made even after you've lost capacity, helping prevent potential abuse and ensuring attorneys act according to your wishes.

What Do Restrictions and Conditions Mean?

Under the Mental Capacity Act 2005, restrictions and conditions are also called "instructions and preferences." Instructions are legally binding directions that attorneys must follow, while preferences are guidance that attorneys should consider but aren't required to follow. When creating your LPA, you write instructions using mandatory language like "must" and "shall," whereas preferences use advisory language like "prefer" and "would like."

The distinction matters significantly in practice. If Margaret writes "My attorneys must act jointly when selling property," both daughters must agree before any sale proceeds. However, if she writes "I would prefer my attorneys to consult my sister before major decisions," that's advisory only—her attorneys should consider consulting but aren't legally required to do so. The Office of the Public Guardian (OPG) must be able to clearly identify whether provisions are mandatory instructions or advisory preferences when reviewing your LPA application.

Common valid restrictions include requiring attorneys to act jointly for property transactions above certain amounts, limiting investment management decisions, or preventing specific actions like selling particular assets. For example, David might specify that his attorneys "must act jointly and severally for day-to-day banking but must act jointly for any property sale or transaction exceeding £50,000." This provides flexibility for routine finances while ensuring oversight for significant decisions. The Mental Capacity Act also imposes statutory restrictions automatically—attorneys can only make modest, customary gifts under Section 12, and Health and Welfare attorneys cannot make decisions until you've lost capacity.

However, several categories of restrictions are invalid and will cause the OPG to reject your LPA or apply to the Court of Protection for severance (removal of invalid provisions). You cannot allow attorneys to change your will—as confirmed in Re Cranston [2015], only you or the Court of Protection can amend wills. You cannot permit unlimited gift-making to avoid care fees or inheritance tax. You cannot include Health and Welfare instructions in a Property and Financial Affairs LPA, or vice versa—these require separate documents. You cannot create hierarchical decision-making where one attorney must follow another's directions. The OPG maintains detailed guidance on invalid provisions in their LP12 guidance document.

Common Questions

"What's the difference between restrictions and preferences in an LPA?" Restrictions are legally binding instructions that attorneys must follow (using words like 'must' and 'shall'), while preferences are guidance the donor would like attorneys to consider but aren't mandatory (using words like 'prefer' and 'would like'). For example, a restriction might state 'My attorneys must act jointly when selling property,' whereas a preference might say 'I would prefer my attorneys to consult my family before making major decisions.' Attorneys must follow instructions but only need to consider preferences.

"Can I restrict my attorneys from making certain financial decisions?" Yes, you can include restrictions limiting specific powers, such as preventing attorneys from managing investment portfolios or requiring joint agreement for transactions over a certain amount. However, restrictions must be practical, clearly worded, and capable of being implemented by banks and financial institutions. The Office of the Public Guardian may reject LPAs with unclear or unenforceable restrictions, so professional legal advice is recommended for complex provisions.

"What restrictions are invalid and cannot be included in an LPA?" Several restrictions are invalid and will cause registration to fail, including: allowing attorneys to change your will, making unlimited gifts to avoid care fees or inheritance tax, acting on health and welfare matters before you lose capacity, or creating decision-making hierarchies where one attorney must follow another's instructions. The OPG maintains guidance on invalid provisions (their "Avoiding invalid provisions in your LPA" document) to help donors create valid LPAs that can be registered successfully.

Common Misconceptions

Myth: "I can include any restriction I want in my LPA—it's my document, so I have complete freedom."

Reality: The Office of the Public Guardian has specific rules about what restrictions are valid. Many seemingly reasonable restrictions will cause your LPA to be rejected during registration, such as allowing attorneys to change your will, make unlimited gifts, or act in ways that conflict with the Mental Capacity Act 2005. Restrictions must be legally enforceable, practical to implement, and within the scope of attorney powers. The OPG maintains detailed guidance on invalid provisions that will cause rejection or require Court of Protection intervention.

Myth: "It's best to include lots of detailed restrictions to prevent my attorneys from abusing their powers."

Reality: While restrictions can prevent abuse, overly complex or numerous restrictions can cause the OPG to reject your LPA or make it impossible for attorneys to use in practice. Many legal practitioners now advise against including restrictions unless absolutely necessary, as banks and other organizations may refuse to accept LPAs with complicated conditions. The Mental Capacity Act already requires attorneys to act in your best interests and follow strict legal duties. Balance protection with practicality by choosing your most important concerns and wording them clearly.

  • Attorney: The person whose powers are being restricted and who must follow your instructions when making decisions on your behalf.
  • Attorney Powers and Limitations: The broader framework of what attorneys can and cannot do, with restrictions being donor-specified limitations within that framework.
  • Donor: The person creating the restrictions and conditions in their LPA, which can only be done while you have mental capacity.
  • Lasting Power of Attorney: The legal document that contains your restrictions and conditions in Section 7 (preferences and instructions).

Need Help with Your Will?

Understanding restrictions and conditions is crucial if you're also creating a will, as both documents work together to protect your interests and ensure your wishes are followed. Your will handles asset distribution after death, while LPAs with appropriate restrictions manage decision-making if you lose capacity during life.

Create your will with confidence using WUHLD's guided platform. For just £99.99, you'll get your complete, legally binding will plus three expert guides. Preview your will free before paying anything—no credit card required.

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.