Attorney Duties: Power of Attorney

What are an attorney's duties and responsibilities?

An attorney must make decisions in the donor's best interests, apply the Mental Capacity Act principles, and act only within the authority the lasting power of attorney gives them (gov.uk, OPG guidance LP12, as at July 2026, subject to change). They also owe a duty of care, must keep accounts, keep the donor's money separate, and respect any instructions or preferences written into the document.

Duty	What it means in practice
Best interests	Every decision must serve the donor, not the attorney or anyone else.
Follow the principles	Apply the five Mental Capacity Act principles to each decision.
Stay within scope	Act only on the type of LPA held: property and financial affairs, or health and welfare.
Keep records	Keep accounts and keep the donor's money and property separate from your own.
Follow instructions	Comply with any binding instructions and consider any preferences in the LPA.

Duty

What it means in practice

Best interests

Every decision must serve the donor, not the attorney or anyone else.

Follow the principles

Apply the five Mental Capacity Act principles to each decision.

Stay within scope

Act only on the type of LPA held: property and financial affairs, or health and welfare.

Keep records

Keep accounts and keep the donor's money and property separate from your own.

Follow instructions

Comply with any binding instructions and consider any preferences in the LPA.

The five Mental Capacity Act principles

Every attorney decision starts from five principles set out in the Mental Capacity Act 2005. In short: assume the donor can decide unless it is shown otherwise, help them make their own decisions, do not treat an unwise decision as a lack of capacity, act in their best interests where they cannot decide, and choose the least restrictive option (legislation.gov.uk, Mental Capacity Act 2005 s.1, as at July 2026, subject to change).

These principles apply to health and welfare attorneys and to property and financial affairs attorneys alike. They mean an attorney supports the donor's own decision-making first, and only steps in to decide when the donor genuinely cannot make a particular decision at that time (gov.uk, OPG guidance LP12, as at July 2026, subject to change).

See our companion guide to the types of LPA and how the two forms differ.

Acting in the donor's best interests

Best interests is the rule an attorney returns to most often. It means weighing the donor's past and present wishes, feelings, beliefs and values, involving them as far as possible, and choosing what serves them rather than what is convenient for the attorney (gov.uk, OPG guidance LP12, as at July 2026, subject to change). It is a considered judgment, not a personal preference.

An attorney acts as the donor would reasonably want, not as the attorney would prefer for themselves.

Keeping money and records separate

A property and financial affairs attorney must keep the donor's money and property separate from their own, and keep accounts of what they receive and spend on the donor's behalf (gov.uk, OPG guidance LP12, as at July 2026, subject to change). Clear records matter because the Office of the Public Guardian can ask an attorney to account, and can investigate concerns.

Separate accounts. The donor's funds are generally not mixed with the attorney's own.

Records. Keeping a simple log of income, spending and decisions helps if questions arise.

No personal benefit. An attorney must not use the donor's money for their own advantage.

Gifts and the limits of the role

An attorney's power to make gifts from the donor's money is narrow. Broadly, gifts are limited to reasonable ones on customary occasions, such as birthdays, or to charities the donor might have supported, and only where affordable and in the donor's interests (gov.uk, OPG guidance LP12, as at July 2026, subject to change). Larger gifts, including inheritance tax planning, generally need the Court of Protection's approval.

An attorney also cannot make a will for the donor, cannot usually pass their role to someone else, and must act personally within the powers granted. Where a decision falls outside what the LPA allows, the right route is often an application to the Court of Protection rather than acting anyway. It can be worth discussing an unusual decision with a qualified professional before acting.

A worked example (illustration only). A daughter is the property and financial affairs attorney for her father, whose LPA has been registered with the Office of the Public Guardian for a fee of £92 (gov.uk, register a power of attorney, as at July 2026, subject to change). He can still choose what he spends on day-to-day things, so she supports those decisions rather than taking them over. When a larger bill arrives that he cannot manage, she pays it from his separate account, keeps the receipt, and logs the decision. She wants to gift £20,000 to a grandchild, but that goes beyond routine gifts, so she considers applying to the Court of Protection rather than acting alone. Every family is different, so this is general information rather than a plan for any real situation.

Attorney duties in Scotland and Northern Ireland

This guide describes the law of England and Wales, where the Mental Capacity Act 2005 and the Office of the Public Guardian apply (legislation.gov.uk, as at July 2026, subject to change). Scotland has a separate system under the Adults with Incapacity (Scotland) Act 2000, with continuing and welfare powers of attorney overseen by the Office of the Public Guardian (Scotland). Northern Ireland has its own arrangements, including enduring powers of attorney. Where affairs touch more than one UK nation, it can be worth taking advice in each. For context, see our estate planning guide.

Frequently asked questions

What is an attorney legally required to do?

An attorney must act in the donor's best interests, follow the five Mental Capacity Act principles, and keep within the powers the LPA grants (legislation.gov.uk, as at July 2026, subject to change). They must also keep the donor's money separate, keep accounts, and follow any binding instructions in the document. These are legal duties, and the Office of the Public Guardian can ask an attorney to account.

Can an attorney make decisions the donor can still make?

Generally no. The first principle is that the donor is assumed able to make their own decisions unless it is established otherwise, so an attorney supports the donor's own choices first (gov.uk, OPG guidance LP12, as at July 2026, subject to change). An attorney only steps in to decide where the donor genuinely cannot make that particular decision at that time.

Can an attorney give gifts from the donor's money?

Only within narrow limits. Gifts are broadly restricted to reasonable ones on customary occasions, or to charities the donor might have supported, and only where affordable and in their interests (gov.uk, OPG guidance LP12, as at July 2026, subject to change). Larger gifts, including tax planning, generally need approval from the Court of Protection, so many attorneys take advice first.

What happens if an attorney breaches their duties?

The Office of the Public Guardian can investigate concerns about how an attorney is acting, and the Court of Protection can remove an attorney or cancel an LPA (gov.uk, OPG guidance LP12, as at July 2026, subject to change). An attorney who misuses their position may also face civil or criminal liability. Keeping clear records and acting in best interests helps avoid problems.

Does an attorney have to keep accounts?

A property and financial affairs attorney should keep the donor's money separate from their own and keep records of income, spending and decisions (gov.uk, OPG guidance LP12, as at July 2026, subject to change). Good records matter because the Office of the Public Guardian can ask an attorney to account for what they have done, so many people keep a simple ongoing log.

Can an attorney be paid for acting?

An attorney can usually claim reasonable out-of-pocket expenses, but cannot generally charge for their time unless the LPA specifically allows it, or they act in a professional capacity (gov.uk, OPG guidance LP12, as at July 2026, subject to change). Any expenses should be reasonable and recorded, and an attorney must not use the donor's money for their own benefit.

About Fairchild Oldfield

The Fairchild Oldfield team brings together estate planning, tax, independent financial advice and client care, working with families across England and Wales.

Fairchild Oldfield are estate planning specialists and will writers, not a firm of solicitors. This article is general information based on practical experience, not legal, tax or financial advice.

Important: This article is general information only and is not legal, tax or financial advice. Reading it does not create a professional relationship. It is based on the law of England and Wales, and other UK jurisdictions may differ. Figures and rules are current as at July 2026 and are subject to change. Before acting, many people choose to seek advice from a suitably qualified professional, such as a solicitor, a STEP practitioner, or an FCA-authorised financial adviser, who can consider your individual circumstances.

Attorney Duties Under a Power of Attorney