What decisions are NOT allowed under a lasting power of attorney
What decisions are NOT allowed under a lasting power of attorney
A lasting power of attorney (LPA) is a valuable legal document that allows you (the donor) to appoint trusted people (your attorneys) to make decisions on your behalf if you lose mental capacity, perhaps through an accident or ill health.
“Many people assume an LPA gives unlimited powers but, in reality, there are important legal limits to what your attorneys can do’ says Fiona Mann, a Solicitor in the private client team at Kerseys Solicitors LLP. “LPAs can offer huge peace of mind, but understanding the safeguards and restrictions helps families avoid misunderstandings later. A well drafted LPA, with clear instructions and good communication, will ensure that attorneys can act in accordance with the wishes of the person who made it with confidence, fully aware of their duty to act in that person’s best interests.”
Which decisions cannot be made by your attorneys?
There are clear legal boundaries to what attorneys are allowed to do.
Wills
Attorneys 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 to do so and one is needed.
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.
Decisions which are not in your best interests
Your attorneys cannot act contrary to the Mental Capacity Act 2005 or the accompanying 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.
Decisions which you can still make
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.
If a property and financial affairs LPA is being used with your permission while you still have capacity, the attorneys’ role is to support you, not to override your decisions.
Decisions which are not permitted under your particular lasting power of attorney
Some people assume attorneys automatically have the right to decide whether life-sustaining treatment should be given or refused. This is incorrect, as 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.
Attorneys cannot act beyond the powers given to them. Some 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 can only be made with the approval of the Court of Protection?
Gifts
Attorneys cannot make substantial gifts unless permission is given. Large gifts or transfers of assets without approval can amount to financial abuse, even if made with good intentions (such as inheritance tax planning) or on the understanding that this is what you would have wanted.
If a grandparent has lost capacity, for example, and the attorney decides to transfer £50,000 of that person’s 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 that you would have liked to help, the law treats this as a gift that requires Court of Protection approval.
Attorneys may make small, customary gifts such as birthday or Christmas presents, but only if these are reasonable and affordable.
Staying within the rules
In all cases, attorneys should keep detailed records noting what was decided, why, and how the decision aligned with your best interests. This protects both you and the attorney.
Being an attorney carries significant legal responsibility. The Mental Capacity Act and 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, well-prepared LPA can prevent the vast majority of problems.
How we can help you with a lasting power of attorney?
We support clients in drafting LPAs that reflect their wishes clearly and unambiguously. 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, please contact the private client law team at any of our offices below:-
Kerseys Solicitors in Ipswich at [email protected] on 01473 213311 or
Kerseys Solicitors in Felixstowe at [email protected] on 01394 834557 or
Kerseys Solicitors in Woodbridge at [email protected] on 01394 813732 or
Kerseys Solicitors in Colchester at [email protected] on 01206 584584 or
Kerseys Solicitors in Stowmarket at [email protected] on 01449 613631 or
visit our web site and click “Call Me Back” where a member of our private client law team will be happy to contact you at a time that is convenient to you.
