The Five Duties of an Attorney

Being someone's attorney under a Lasting Power of Attorney is a position of trust, not a favour you do for a relative. The law calls it a fiduciary position, and it carries real duties. This guide sets out the five that matter most, and what happens to an attorney who ignores them.

The duties come from two places. Some are written into the Mental Capacity Act 2005. Others come from the courts, which treat an attorney much like a trustee. Both bind you from the moment the Office of the Public Guardian registers the document.

Duty 1: Act in the donor's best interests

This is the one everything else hangs off. Section 9(4)(a) of the Mental Capacity Act 2005 says the authority an LPA gives you is subject to the Act, and names section 1 and section 4 in particular. So every decision you make as attorney has to be in the donor's best interests, not yours and not the family's.

Section 4 tells you how to work out what those best interests are. It is a checklist, not a hunch:

• Do not judge by appearances. You cannot decide on the basis of the donor's age, appearance, or a condition that leads people to make assumptions about them.
• Consider whether they might regain capacity. If the decision can wait until they can make it themselves, it usually should.
• Involve them. You must permit and encourage them to take part in the decision as fully as they can.
• Start from what they would have wanted. Their past and present wishes, their beliefs and values, and anything else they would have taken into account.
• Ask the people who know them. Where it is practical, consult carers, family, and anyone else they named.

Best interests is not the same as what you would do in their shoes, and it is not the same as what is cheapest or easiest.

Duty 2: Follow the five statutory principles

Section 1 of the Mental Capacity Act 2005 sets out five principles that govern everything done under the Act. As an attorney you are bound by all five.

• Assume capacity. A person must be assumed to have capacity unless it is established that they lack it.
• Help them decide first. Nobody is to be treated as unable to decide until all practicable steps to help them have been tried without success.
• An unwise decision is still their decision. A person is not to be treated as unable to decide merely because they make an unwise one.
• Act in their best interests. Anything done for someone who lacks capacity must be in their best interests.
• Choose the least restrictive option. Before acting, consider whether the same purpose can be achieved in a way that interferes less with their rights and freedom.

The third principle catches people out. While the donor still has capacity for a particular decision, it is theirs to make, even if you think it is a mistake. Your authority is not a veto.

There is a twist worth knowing. In Re P (2009), the court said that once the decision has passed to someone else, that person should not consciously make an unwise decision just because the donor might have. As the judge put it, "a consciously unwise decision will rarely if ever be made in P's best interests". That passage was later applied to attorneys in Re Buckley (2013).

Duty 3: Stay inside the authority you were given

An LPA is not a blank cheque. Your authority is limited by the type of LPA, by any conditions or restrictions the donor wrote into it, and by the Act itself.

The clearest limit is on gifts. Section 12 of the Mental Capacity Act 2005 allows only two kinds, and only under a property and financial affairs LPA. The first is a gift on a customary occasion, such as a birthday, a wedding or a civil partnership, to someone related to or connected with the donor. The second is a gift to a charity the donor gave to, or might have been expected to give to. Even then, each gift must not be unreasonable given the size of the donor's estate. Anything beyond that needs the court's permission.

In Re Buckley (2013) the Court of Protection listed the transactions that require an application to court, subject to a sensible exception for very minor matters:

• Gifts beyond section 12. Anything outside the customary occasion rule.
• Loans. To the attorney, or to the attorney's family.
• Investment in the attorney's own business. In any form.
• Sales or purchases at an undervalue. Including to family members.
• Any conflict transaction. Anything where the donor's interests and the attorney's interests pull in different directions.

Duty 4: Keep their money separate, and keep records

The donor's money is not your money, and it must not sit in an account that looks like yours. The Mental Capacity Act Code of Practice says at paragraph 7.68 that attorneys should keep the donor's money and property separate from their own or anyone else's.

The court applied that directly in Re Buckley (2013), holding that it covers investments too, and that wherever possible investments should be made in the donor's name. Where that is genuinely not possible, the attorney should sign a declaration of trust or some other formal record acknowledging that the asset belongs to the donor.

Records matter because you can be asked for them. Under section 23 of the Mental Capacity Act 2005, the Court of Protection can order an attorney to produce documents in their possession, and can give directions about rendering reports and accounts. An attorney who kept no records has no answer.

Duty 5: Do not take advantage of the position

This is the duty that follows from being a fiduciary. In Re Buckley (2013) the court put it plainly: "Attorneys hold a fiduciary position, which imposes a number of duties on them."

The Code of Practice says at paragraph 7.60 that attorneys must not take advantage of their position, and that decisions should always benefit the donor, not the attorney. In practice that means no using the donor's funds for your own purposes, no self-dealing, and no quietly preferring your own branch of the family.

Ignorance is not a defence. Re Buckley said attorneys should be familiar with the information on the LPA form and with the Code of Practice. That is because section 42(4)(a) of the Mental Capacity Act 2005 puts attorneys under a duty to have regard to the Code. If a court is later asked whether an attorney fell short, section 42(5) requires it to take the Code into account.

How careful does an attorney have to be?

The standard is higher than many attorneys expect, and it is not the same for everybody. This is how the court put it in Re Buckley (2013):

Attorneys hold a fiduciary position, which imposes a number of duties on them. Like trustees and other fiduciaries, they must exercise such care and skill as is reasonable in the circumstances when investing the donor's assets and this duty of care is even greater where attorneys hold themselves out as having specialist knowledge or experience.

So a retired accountant appointed partly because of that background is judged more strictly than a son with no financial training. A paid professional attorney is judged more strictly still. Being unpaid does not remove the duty. It only sets the bar at what is reasonable for someone in your position.

What happens if an attorney gets it wrong?

The consequences run from awkward to criminal, depending on what happened.

• The court can revoke the LPA. Section 22 of the Mental Capacity Act 2005 applies where the donor can no longer revoke it themselves. If the attorney has behaved, is behaving, or proposes to behave in a way that contravenes their authority or is against the donor's best interests, the court can revoke the power.
• The attorney can be made to account. Under section 23, the court can require records and accounts. It can also relieve an attorney wholly or partly from liability for a breach, which matters for honest mistakes.
• Ill-treatment or wilful neglect is a crime. Under section 44, an attorney who ill-treats or wilfully neglects the donor commits an offence, carrying up to five years' imprisonment on conviction on indictment.

The Office of the Public Guardian supervises registered LPAs and investigates concerns. Most cases that reach the Court of Protection start with a complaint to the OPG.

Which version of the Code applies?

The Mental Capacity Act Code of Practice still in force is the one first published in 2007. A revised Code was published in draft and consulted on in 2022, and the government has signalled further consultation, but it has not been brought into force. As at August 2026, the 2007 Code is the one attorneys must have regard to.

What should you do about it?

If you are choosing who to appoint, read our guide on choosing attorneys, and think hard about whether the person you have in mind will keep records and ask before acting. If you have been appointed and are not sure where your authority ends, read what an attorney is and check the restrictions written into the LPA itself.

If you are worried that someone else's attorney is misusing their position, the Office of the Public Guardian is the place to raise it. We do not act in contested Court of Protection matters, so for a live dispute you will need a specialist, and the Law Society's Find a Solicitor service can point you to one.

This article is for general information and is not legal advice. If you are worried about your duties as an attorney, or about how someone else is using an LPA, please get in touch for advice on your own situation.

Sources

• Mental Capacity Act 2005, section 1 (the principles) on legislation.gov.uk
• Mental Capacity Act 2005, section 4 (best interests) on legislation.gov.uk
• Mental Capacity Act 2005, section 9 (lasting powers of attorney) on legislation.gov.uk
• Mental Capacity Act 2005, section 12 (scope of lasting powers of attorney: gifts) on legislation.gov.uk
• Mental Capacity Act 2005, section 22 (powers of court in relation to validity of LPAs) on legislation.gov.uk
• Mental Capacity Act 2005, section 23 (powers of court in relation to operation of LPAs) on legislation.gov.uk
• Mental Capacity Act 2005, section 42 (codes of practice) on legislation.gov.uk
• Mental Capacity Act 2005, section 44 (ill-treatment or neglect) on legislation.gov.uk
• Re Buckley: The Public Guardian v C [2013] EWCOP 2965, also cited as [2013] EWHC 2965 (COP), on Find Case Law, The National Archives
• Mental Capacity Act Code of Practice (2007) on GOV.UK
• Register a lasting power of attorney on GOV.UK