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Understanding Lasting Power of Attorney: Limits on attorneys’ powers

September 28, 2023

The duties and powers of an attorney are set out in the Mental Capacity Act 2005 and the Mental Capacity Act Code of Practice. An attorney has the legal duty to act in the donor’s best interest and can only make decisions that they have been given the authority to make.

If a Lasting Power of attorney states attorneys must make decisions jointly then the attorneys are bound by this and cannot make decisions alone. Furthermore, an attorney can only make decisions relevant to the type of Lasting Power Attorney that they have been appointed under. For example, an attorney for property and financial affairs could not give consent to an operation on the donor’s behalf.

If the donor of a health and welfare LPA makes a decision in advance of losing mental capacity and then suddenly loses it, this decision cannot be overruled by an attorney unless there is specific wording in the LPA that covers that particular situation. For example, if the donor refuses treatment and as a result loses their capacity within a short space of time.

If the donor has investments within a discretionary management scheme particular wording is required within the LPA document to allow for this. An attorney cannot delegate any decisions on a donor’s behalf. This includes to an investment fund manager unless they have permission within the LPA or a court order.

If any attorney is not acting in the best interests of the donor or tries to act beyond their given powers, they can be reported to the Office of the Public Guardian (OPG). The OPG will investigate and may apply to the Court of Protection to have the attorney removed. If the OPG fear immediate risk or danger for the donor, then the police or social services may be informed. If you would like to make a Lasting Power of Attorney or have further questions regarding the duties of your attorneys, do not hesitate to contact us to make an appointment at our Solihull office on 0121 705 7571, or our Dorridge office on 01564 779393.

Sophia Kenna
Trainee Solicitor – Wills and Probate Department

This article is for general information purposes only. It does not constitute technical, financial, legal advice or any other type of professional advice and is no substitute for specific advice based on your individual circumstances. We do not accept responsibility or liability for any actions taken based on the information in this article. For more information, please click here.