LPA Gifts and Restrictions: What Your Attorney Can and Can't Do

LPA Attorney Powers and Restrictions: The Complete Guide

Being an attorney under a Lasting Power of Attorney comes with significant powers—but also important restrictions. Understanding both is essential, whether you're setting up an LPA or acting as an attorney.

The Basic Rule: Best Interests

Everything an attorney does must be in the donor's best interests. This overriding principle shapes every power and restriction.

Best interests means:

• What benefits the donor (not the attorney)
• Considering the donor's past and present wishes
• The least restrictive option
• Maintaining the donor's wellbeing

Powers of a Property & Financial Affairs Attorney

What You CAN Do

Bank accounts:

• Access and operate all accounts
• Transfer money between accounts
• Pay bills and expenses
• Set up direct debits
• Close unnecessary accounts
• Open new accounts if beneficial

Property:

• Maintain and repair property
• Pay mortgage and insurance
• Sell property (if in donor's interests)
• Buy property (if clearly beneficial)
• Manage rental properties
• Deal with landlords or tenants

Bills and expenses:

• Pay all living expenses
• Manage utilities
• Pay care costs
• Handle tax affairs
• Claim benefits and pensions

Investments:

• Manage existing investments
• Make new investments (carefully)
• Access ISAs and savings
• Deal with financial advisers

Legal and admin:

• Sign documents on donor's behalf
• Deal with solicitors
• Handle insurance claims
• Manage correspondence

Grey Areas

Business decisions: Usually allowed if:

• The LPA doesn't restrict this
• It's in the donor's interests
• You have necessary expertise

Large financial decisions: Proceed carefully with:

• Major investments
• Expensive purchases
• Complex legal matters

*Consider getting professional advice.*

Powers of a Health & Welfare Attorney

What You CAN Do

Healthcare:

• Consent to or refuse treatment
• Access medical records
• Speak to doctors and nurses
• Make decisions about medication
• Decide on therapies and treatments

Care arrangements:

• Choose care providers
• Decide where the donor lives
• Determine daily care routines
• Make arrangements for support

Daily life:

• Decide on diet and nutrition
• Manage social contacts
• Make decisions about activities
• Handle complaints about care

What You MIGHT Be Able to Do

Life-sustaining treatment:

• Only if the LPA specifically grants this
• The LPA form asks about this explicitly
• Without specific authority, you cannot refuse life-saving treatment

Section 2: "Option A" or "Option B" When creating the LPA, the donor chooses whether to give authority over life-sustaining treatment. Check what was selected.

Universal Restrictions (Both Types)

Things Attorneys Can NEVER Do

1. Make a Will for the donor No attorney can create, change, or revoke the donor's Will. This power doesn't exist.

2. Vote in elections Voting is personal. An attorney cannot vote on the donor's behalf.

3. Consent to marriage or civil partnership These are personal decisions that cannot be delegated.

4. Consent to divorce (on donor's behalf) Divorce proceedings require personal capacity or court involvement.

5. Consent to certain medical treatments Some treatments require court approval regardless of LPA:

• Organ donation (from living donor)
• Non-therapeutic sterilisation
• Experimental treatments in some cases

6. Delegate their authority An attorney cannot give their powers to someone else. They must act personally.

7. Act outside the LPA's scope A Property & Financial attorney can't make health decisions (and vice versa).

8. Act against the donor's interests Self-enrichment or conflicts of interest are prohibited.

The Gift Rules: Critical to Understand

The Default Position

Attorneys generally cannot give away the donor's money or assets.

The Exception: "Customary" Gifts

Attorneys CAN make gifts that are:

• Customary (expected in the circumstances)
• Reasonable (proportionate to the estate)
• On certain occasions (birthday, Christmas, wedding, etc.)
• To certain people (those the donor would normally give to)

What "Customary" Means

Allowed examples:

• Birthday presents to grandchildren (£50-100)
• Christmas gifts to family (reasonable amounts)
• Wedding gifts to close relatives
• Charitable donations the donor habitually made

Not allowed:

• Large cash gifts to reduce estate for inheritance tax
• Gifts to the attorney themselves (mostly)
• Gifts to people the donor wouldn't normally give to
• Gifts beyond what the donor can afford

The Calculation Problem

How much is "reasonable"?

Consider:

• Size of the donor's estate
• What they used to give
• Their current needs
• How long they might live
• Future care costs

Rule of thumb: If you're wondering whether a gift is too big, it probably is.

Can an Attorney Gift to Themselves?

Generally no, with very limited exceptions:

• If they would have received a gift anyway (e.g., birthday)
• And it's the same as other family members receive
• And it's modest and reasonable

Safe approach: Don't make gifts to yourself at all.

Getting Permission for Larger Gifts

If you want to make gifts beyond the "customary" exemption, you can apply to the Court of Protection for authority.

When this might be appropriate:

• Tax planning for the donor's benefit
• Continuing a pattern of significant giving
• Specific circumstances justify larger gifts

The process:

• Apply to the Court
• Explain why it's in the donor's interests
• Court decides

Cost: Several hundred to several thousand pounds.

Investment Restrictions

The Standard of Care

Attorneys must invest with "reasonable care and skill."

This means:

• Don't take excessive risks
• Consider the donor's attitude to risk
• Think about their needs
• Diversify appropriately
• Seek professional advice for significant sums

Types of Investment

Generally acceptable:

• Bank savings accounts
• NS&I products
• Low-risk funds
• Premium bonds
• Property (carefully)

Proceed with caution:

• Stock market investments
• Buy-to-let property
• Complex financial products

Usually inappropriate:

• Cryptocurrency
• High-risk ventures
• Speculative investments
• Investments benefiting the attorney

Getting It Right

For significant investment decisions:

• Document your reasoning
• Consider professional advice
• Think about what the donor would want
• Keep records of everything

Conflicts of Interest

What's a Conflict?

When the attorney's interests clash with the donor's interests.

Examples:

• Buying the donor's property yourself (even at market value)
• Lending the donor's money to yourself
• Making decisions that benefit you financially
• Choosing a care home where you work

Handling Conflicts

Option 1: Don't act when there's a conflict. Let a co-attorney handle it.

Option 2: Get independent advice and document everything.

Option 3: Apply to the Court of Protection if major decisions are needed.

Option 4: For serious conflicts, consider stepping down.

Setting Restrictions in the LPA

The Donor's Power to Restrict

When creating an LPA, the donor can add restrictions:

• "My attorney cannot sell my house"
• "My attorney must consult X before major decisions"
• "Gifts over £100 require co-attorney agreement"

Common Restrictions

Property:

• Cannot sell the family home
• Must maintain specific property

Financial:

• Cannot close certain accounts
• Investment limitations
• Gift limits

Decision-making:

• Must consult named persons
• Requires co-attorney agreement for certain decisions

Why Add Restrictions?

• Protect specific assets
• Ensure family involvement
• Prevent particular actions
• Provide guidance to attorneys

Why NOT Add Restrictions?

• Inflexibility if circumstances change
• May prevent beneficial actions
• Can complicate administration
• Might require court applications to override

What If an Attorney Exceeds Their Powers?

Consequences

For the attorney:

• OPG investigation
• Removal as attorney
• Required to repay money
• Potential prosecution
• Civil liability

For the donor:

• Assets may be unrecoverable
• Court involvement needed
• Family disputes
• Financial loss

Who Can Report Problems?

Anyone can report concerns to the OPG:

• Family members
• Care providers
• Banks
• Social services
• The attorney themselves (if they made a mistake)

The OPG's Powers

The Office of the Public Guardian can:

• Investigate complaints
• Require attorneys to account for actions
• Apply to the court to remove attorneys
• Refer cases for prosecution

Summary: Quick Reference

Property & Financial Attorney CAN:

• Manage bank accounts
• Pay bills and expenses
• Sell property (if beneficial)
• Manage investments (carefully)
• Make small customary gifts

Property & Financial Attorney CANNOT:

• Make large gifts (without court permission)
• Self-deal or benefit personally
• Make a Will for the donor
• Take excessive risks
• Act against donor's interests

Health & Welfare Attorney CAN:

• Make medical decisions
• Choose care arrangements
• Decide where donor lives
• Refuse treatment (with limits)

Health & Welfare Attorney CANNOT:

• Make financial decisions
• Refuse life-sustaining treatment (unless LPA permits)
• Consent to certain procedures
• Act against donor's best interests

Neither Attorney CAN:

• Vote for the donor
• Consent to marriage
• Delegate their authority
• Act outside LPA scope
• Benefit themselves at donor's expense

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