How to protect yourself when acting under Power of Attorney

The single most common cause of difficulties for attorneys is not malice or dishonesty. It is acting without properly understanding what the role requires. Before you make any significant decision under a Lasting Power of Attorney, make sure you understand:

• The scope of the LPA: what it covers and, crucially, what it does not
• Any conditions or restrictions written into the LPA document itself
• The basic principles of the Mental Capacity Act 2005, particularly the best interests framework
• When the LPA can be used: a Health and Welfare LPA can only be used when the donor lacks capacity for a specific decision
• Your duty to keep the donor’s finances separate from your own
• The rules around gifts and what you are and are not permitted to do without court authority

The OPG publishes detailed guidance for attorneys on its website. Reading it fully, particularly “Being a property and financial affairs attorney” or “Being a health and welfare attorney,” is time well spent before you start acting.

Nothing protects an attorney more effectively than a comprehensive, contemporaneous record of everything they have done. Not because your records will be examined as a matter of course, but because if a question is ever raised, you want to be able to answer it clearly and immediately.

Good records serve several purposes:

• They demonstrate that you applied the best interests test properly
• They show that you considered the donor’s known wishes and feelings
• They confirm you consulted the right people
• They provide a clear, factual account that cannot be disputed
• They protect you against complaints made in bad faith
• They give confidence to other family members that you are acting transparently

Records written at the time of a decision are far more valuable than anything reconstructed afterwards. Even a brief, clear note written on the day carries more weight than a detailed account produced months later.

Section 4 of the Mental Capacity Act 2005 sets out what best interests means in practice. Applying it properly is not bureaucracy. It is how you make good decisions and how you demonstrate that you have done so.

For every significant decision, ask yourself:

• Does the donor currently have capacity to make this decision themselves? If so, the decision is theirs, not yours
• What would the donor have wanted in this situation, based on their expressed wishes, values and past choices?
• Have I involved the donor as fully as their current capacity allows?
• Have I consulted relevant family members, carers, and professionals?
• Have I considered all the options, not just the most convenient one?
• Is this the least restrictive option that meets their needs?

Answering these questions in writing, even briefly, creates a record that shows you took your responsibilities seriously.

One of the most important things an attorney can do is recognise the limits of their own knowledge and seek professional advice when they need it. This is not a sign of weakness. It is a sign of good judgment.

When should you seek advice?

• Any decision involving a significant sum of money, particularly if it reduces the donor’s overall estate
• Any decision about selling, renting or significantly altering property
• Decisions about making or changing significant financial arrangements, investments, or pensions
• Any situation involving a potential conflict of interest for you as attorney
• Medical decisions where you are being asked to consent to treatment that carries significant risk
• Any situation where family members are seriously disagreeing about what should happen
• Any time you receive correspondence from the OPG

Solicitors who specialise in Court of Protection matters, independent financial advisers, the OPG helpline, and the donor’s own GP or specialist can all provide relevant input depending on the situation.

Family disputes are one of the most common triggers for OPG complaints. Many of them arise not because the attorney has done anything wrong, but because other family members feel excluded, uninformed, or suspicious.

Proactive transparency is one of the most effective ways to prevent disputes. This does not mean seeking permission from every family member for every decision. It means keeping relevant people reasonably informed about significant matters, being willing to share your reasoning, and involving others where the donor would have wanted them involved.

It is worth noting that your duty is to the donor, not to family members who may have their own interests or opinions. But maintaining open communication reduces the risk of conflict significantly.

The original registered LPA is an important legal document. Keep it somewhere secure but accessible. You may need to produce it, or a certified copy of it, when dealing with banks, care providers, healthcare professionals and others. Many attorneys obtain several certified copies at the time of registration to avoid repeated requests.

Note the OPG reference number in your records. It is the identifier the OPG uses for all correspondence and enquiries related to the LPA.

An LPA ends when the donor dies. At that point, your authority as attorney ceases entirely and the estate passes to the executors under the will. Using the LPA after the donor’s death, even for what might seem like minor or practical purposes, is not permitted and can cause significant legal complications.

A Health and Welfare LPA can only be used when the donor lacks capacity for a specific decision. If capacity returns, even partially, you must involve the donor directly in decisions they are capable of making.