A Lasting Power of Attorney (LPA) is one of the most important legal documents a person can put in place. It allows an individual (known as the Donor) to appoint one or more trusted people (known as the Attorneys) to make decisions on their behalf if they are unable to do so themselves.
There are two types of LPA that you can make:
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Property and Financial Affairs – this LPA covers decisions about the Donor’s bank accounts, investments, bills, pensions and property.
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Health and Welfare – this LPA covers decisions about the Donor’s medical treatments, wellbeing and care arrangements.
While LPAs give Attorneys significant authority, they do not provide unlimited powers. Attorneys are legally required to act in the Donor’s best interests, and within the legal boundaries set.
Below are seven key things that an Attorney cannot do under an LPA:
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Make or Change the Donor’s Will
An Attorney cannot use an LPA to make, alter or revoke a Donor’s Will, even if the Donor has lost capacity. The Donor’s estate planning decisions and their Will are separate to the authority which is granted under an LPA.
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Use The Donor’s Money for Their Own Benefit
The underlying principle of LPAs is that the Attorney must act in the Donor’s best interests. An Attorney cannot treat the Donor’s money or property as their own and use it for their own benefit. Misusing the Donor’s funds in this way can result in investigations by the Office of the Public Guardian and in more serious cases, court interventions.
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Act Outside of the Scope of the LPA
An Attorney can only make decisions that fall within the authority granted by the specific type of LPA. i.e. Health and Welfare Attorneys cannot make decisions relating to the Donor’s property or bank accounts and a Property and Financial Affairs Attorney cannot make decisions about the Donor’s healthcare and treatments.
Although the same individual can be appointed under both LPAs, each document provides separate authority and must be treated as such.
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Ignore The Donor’s Instructions
The Donor can set specific Instructions and Preferences in both types of LPAs. Instructions in an LPA are legally binding and therefore, an Attorney must follow them and cannot decide to do as they wish instead. Preferences in an LPA are not legally binding, although the Attorney must still consider them carefully when making decisions.
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Make Unlimited Gifts (Without Authority)
Attorneys cannot make unlimited amounts of gifts on behalf of the Donor. Generally, small gifts on customary occasions such as birthdays or Christmas, may be permitted as long as they are reasonable and proportionate.
However, large and substantial gifts or transfers of property will require approval from the Court of Protection. If substantial gifts are made without authority, then this could amount to a breach of the Attorney’s duties.
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Make Decisions Before the LPA Can Be Used
A Health and Welfare LPA can only be used if the Donor lacks capacity to make decisions themselves. An Attorney cannot simply take over decision making if they disagree with the Donor’s decisions or choices.
Similarly, Property and Financial Affairs LPAs may have restrictions in them as to when they can be used, so the Attorney must be sure they are using it only when they can.
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Delegate Decision Making to Others
A Donor appoints specific Attorneys for a reason, because they trust them implicitly to help them make decisions when they are no longer able to. Therefore, an Attorney cannot simply delegate this authority on to someone else to make decisions for the Donor.
In conclusion, LPAs give Attorneys power and authority however, these are not unlimited. Attorneys must always follow the law and make decisions in the Donor’s best interests. It is important for both Donor’s and Attorneys to understand the limitations of LPAs as it protects both parties and ensures the documents can be used safely and effectively.
If you would like to discuss Lasting Powers of Attorney and how we may be able to help, please give our friendly team a call on 0116 212 1000 or 01858 445 480 or complete our Contact Us form.
Other Articles – see also “Health and Welfare Lasting Powers of Attorney: Why They Matter.”
Written by a Solicitor and enhanced by AI
