Being appointed as an LPA attorney gives you genuine authority over someone else’s affairs. Depending on the type of LPA, that can mean managing bank accounts, selling property, making medical decisions, or determining where the donor lives. That is significant power, and the Mental Capacity Act 2005 deliberately places limits on it.
Understanding what you cannot do is just as important as knowing what you can. Attorneys who overstep these boundaries, even with good intentions, can find themselves investigated by the Office of the Public Guardian or removed by the Court of Protection. Here are the main restrictions every attorney should know.
You cannot make or change a will
This is one of the most firmly held restrictions in the law. No matter how broad the LPA, you cannot make a will on the donor’s behalf, alter an existing will, or take any action that effectively redirects where the donor’s estate will go. Will-making requires testamentary capacity, which is a separate legal test from the capacity assessed under the MCA. A valid will must be made by the donor themselves while they have that capacity.
The only route to make or vary a will on behalf of someone who lacks capacity is a statutory will application to the Court of Protection. That is a formal legal process, it costs money, and the court will scrutinise it carefully. It cannot be done unilaterally by an attorney.
This restriction also means you cannot take steps that indirectly change the effect of a will, for example by transferring significant assets out of the estate in a way that defeats what the donor had previously intended.
You cannot give away assets beyond small gifts
Section 12 of the MCA 2005 sets out the only circumstances in which an attorney may make gifts from the donor’s funds. Gifts are permitted on customary occasions such as birthdays, Christmas, or weddings, to people including the donor’s family, friends, or charities the donor supported. The amounts must be reasonable given the donor’s overall financial situation.
What this means in practice is that you cannot transfer large sums to family members, even if you believe the donor would have wanted to help them. You cannot make a gift of property. You cannot make significant charitable donations unless the LPA specifically authorises this or the Court of Protection approves it. Attorneys who make substantial gifts of the donor’s assets, without Court of Protection approval, are at serious risk of being found to have acted in breach of their duties.
If there is a genuine reason why a larger gift might be appropriate, the right route is an application to the Court of Protection for a gift authorisation order.
The restrictions on gifts and asset transfers exist because attorneys, however well-meaning, have an inherent conflict of interest when the donor’s money might flow to people the attorney knows, including themselves.
You cannot act outside the scope of the LPA type
There are two types of LPA. A Property and Financial Affairs LPA covers financial and property decisions. A Health and Welfare LPA covers personal care and medical decisions. If a donor has only one type, the attorney under that LPA has no authority over matters covered by the other type.
A financial attorney cannot instruct care providers about the donor’s medical treatment. A health and welfare attorney cannot access the donor’s bank accounts. If a donor has both types and different people are appointed as attorneys for each, they need to work within their own area of authority. Crossing into the other attorney’s domain, without formal authorisation, is outside the scope of the role.
You cannot act when the donor still has capacity for that decision
The Mental Capacity Act is built on the principle that capacity is decision-specific and time-specific. Someone may lack capacity to manage their investments but retain full capacity to decide what they eat or where they go. Even if a Property and Financial Affairs LPA is registered and active, you should not be making decisions the donor is still perfectly capable of making themselves.
Acting for someone in areas where they retain capacity is not just unnecessary, it can be a form of interference with their autonomy that the MCA explicitly protects against. A good attorney supports the donor’s decision-making rather than replacing it wherever possible.
You cannot mix the donor's finances with your own
This is a fundamental requirement, and one that attorneys sometimes breach out of convenience rather than dishonesty. Paying for the donor’s shopping from your own account and reimbursing yourself later, or keeping the donor’s cash in your wallet alongside your own, creates exactly the kind of confusion the OPG wants to avoid.
The donor’s money should flow through accounts that are clearly in the donor’s name. If you pay for something on the donor’s behalf and claim it back, keep a clear record of each transaction. Mixing funds, even temporarily and even innocently, makes it very difficult to account for where the donor’s money has gone.
- Keep the donor’s bank accounts separate from your own at all times
- Never use the donor’s money for your own expenses, even temporarily
- If you pay something on the donor’s behalf, log it immediately and reimburse yourself with documentary support
- Do not accept cash from the donor’s accounts and keep it unseparated
You cannot benefit yourself without authorisation
Attorneys act in a fiduciary capacity. That means their duty is to act in the donor’s interests, not their own. As a default, attorneys are not permitted to benefit financially from their role beyond reasonable expense reimbursement, unless the LPA specifically authorises payment or the Court of Protection approves it.
This restriction catches more situations than people expect. Selling the donor’s property to yourself at below market value is a clear example. But so is using the donor’s money to fund a business that benefits you, or entering into contracts on the donor’s behalf with companies in which you have an interest. Any arrangement where the attorney stands to gain financially from a decision made on the donor’s behalf should be examined carefully.
Where there is a genuine conflict of interest, the right approach is to seek independent legal advice and, where necessary, Court of Protection approval before proceeding.
Why these restrictions exist
The MCA 2005 was designed to balance two things: giving attorneys enough authority to actually help the donor, while protecting donors from abuse. The restrictions on gifts, self-benefit, and acting beyond scope are not bureaucratic obstacles. They reflect the reality that the donor, by definition, is in a vulnerable position and cannot always protect their own interests. The law does it for them.
Document your decisions and stay within the rules
Wardly helps LPA attorneys log what they did, why they did it, and keep a clear record that demonstrates they have stayed within the boundaries of their role.
Start your free recordFrequently asked questions
Can I appoint a deputy or delegate my authority as an attorney?
No. An attorney cannot delegate their authority to someone else. The appointment is personal. If you are unable to act, whether temporarily or permanently, the right step is to notify the OPG and, if necessary, for another attorney to step in or a deputy to be appointed by the court.
Can I make a decision the donor disagrees with if I think it is in their best interests?
Only if the donor genuinely lacks capacity to make that specific decision. If they have capacity, their decision stands, even if you think it is unwise. The MCA is explicit that a person’s right to make unwise decisions must be respected.
What if I have already made a gift that was too large?
Take legal advice as soon as possible. Depending on the circumstances, you may need to notify the OPG. It is far better to raise it proactively and explain what happened than to have it discovered in an investigation.
Can a Health and Welfare attorney refuse life-sustaining treatment on the donor's behalf?
Only if the LPA specifically grants that authority. A health and welfare LPA does not automatically include the right to refuse life-sustaining treatment. The donor must have expressly granted this in the LPA for the attorney to exercise it.