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If you’ve been asked to act as an Attorney under a Lasting Power of Attorney (LPA) you may have discovered that the LPA doesn’t give much guidance about what the role entails.  The only relevant section is headed “Your Legal Rights and Responsibilities” and this should be read by all the parties to LPA.

This states that LPAs are governed by the Mental Capacity Act 2005 (MCA), any regulations made under it and the MCA Code of Practice.  The Code of Practice can be found at www.gov.uk/opg/mca-code.  However, as The Code of Practice runs to 301 pages, it is not entirely surprising that lots of Attorneys haven’t read it.

The Theory:

The LPA says that Attorneys should follow the principles of the MCA which are: 

1. Your Attorneys must assume that you can make your own decisions unless it is established that you cannot do so.
2. Your Attorneys must help you to make as many of your own decisions as you can. They must take all practical steps to help you to make a decision.  They can only treat you as unable to make a decision if they have not succeeded in helping you make a decision through those steps.
3. Your Attorneys must not treat you as unable to make a decision simply because you make an unwise decision.
4. Your Attorneys must act and make decisions in your best interests when you are unable to make a decision.
5. Before your Attorneys make a decision or act for you, they must consider whether they can make the decision, or act in a way that is less restrictive of your rights and freedom but still achieves the purpose.

In Practice

The starting point is to always assume that someone can make their own decisions.  If they are struggling, you can help by giving advice and information, but you shouldn’t tell them what to do.  An LPA does not give an Attorney the right to decide how someone’s affairs should be run if they are capable of making decisions for themselves.

If an Attorney doesn’t agree with the decision that’s been made or they think it is ridiculous this does not give them the right to take over decision making.  Having a discussion about the implications of the decision might be wise, but the Attorney shouldn’t overrule the decision.

If an Attorney does have to make decisions because the person can’t, then they should always consider what is best for that person and take into account the factors that they would consider.

One issue that seems to crop up frequently is the ability of the Attorney to make gifts.  The rules about  gifts are strict and limit them to specific occasions such as birthdays, Christmas, weddings, anniversaries or any other times when the family normally give presents or to charities the person favoured.  The amount given should be reasonable given the amount of money the person has.

If you’d like to discuss how LPAs work in more detail, either if you are thinking of putting them in place or if you have been appointed as an Attorney, please contact Cath Collins on 01945 898090 or This email address is being protected from spambots. You need JavaScript enabled to view it..