What Are the Duties of an Attorney?
Being an attorney is a serious legal responsibility. Here is what the law requires.
Written by Anthony Dalton · Reviewed by James Tyrrell · Last reviewed
Being named as someone's attorney is more than a gesture of trust — it is a legal role with real responsibilities and real consequences if things go wrong. The Mental Capacity Act 2005 sets out a clear framework for how attorneys must behave, and the Office of the Public Guardian (OPG) has the power to investigate complaints and take action if those duties are breached. Whether you are managing someone's finances or making health and welfare decisions, understanding your responsibilities is essential. If you are still deciding who should be an attorney, these duties should inform that choice.
At a glance
- An attorney must always act in the donor’s best interests, following the five principles of the Mental Capacity Act 2005
- The donor’s money and assets must be kept completely separate from the attorney’s own finances
- Gift-making powers are very limited — only small, reasonable gifts on customary occasions to connected people
- The OPG can investigate attorneys, and the Court of Protection can remove them, order repayment of losses, or refer cases for criminal prosecution
The Duty to Act in the Person's Best Interests
The most fundamental duty of an attorney is to act in the best interests of the person who appointed you (known as the donor). This is not about what you think is best, or what is most convenient for you — it is about what is best for the donor.
When determining best interests, you should consider:
- The donor's past and present wishes and feelings
- Their beliefs and values
- Any written instructions or preferences included in the LPA
- The views of other people close to the donor (where practical and appropriate)
- Whether the donor might regain capacity to make the decision themselves
Key point: Even if you disagree with the donor's known wishes, you must respect them unless doing so would put the donor at serious risk of harm. The donor's autonomy and preferences should always be the starting point.
The Mental Capacity Act Principles
Every attorney must follow the five statutory principles set out in the Mental Capacity Act 2005:
Presumption of capacity
You must assume the donor can make their own decisions unless it is established that they cannot. Do not take over decision-making simply because a person is elderly or has a diagnosis.
Support to make their own decisions
Before deciding that the donor lacks capacity, you must take all practical steps to help them make the decision themselves — for example, explaining things in simple language, choosing the right time of day, or using visual aids.
Unwise decisions are allowed
A person is not to be treated as lacking capacity simply because they make a decision you consider unwise. Everyone has the right to make choices others might disagree with.
Best interests
Any decision made on behalf of the donor must be in their best interests, taking into account all relevant circumstances.
Less restrictive option
Before making a decision, you must consider whether there is a less restrictive way to achieve the same outcome. Always choose the option that interferes least with the donor's rights and freedom.
Keeping the Donor's Finances Separate from Your Own
If you are an attorney under a Property & Financial Affairs LPA, one of your most critical duties is to keep the donor's money and assets completely separate from your own. This means:
- Do not mix funds — never transfer the donor's money into your personal bank account
- Keep clear records — maintain detailed accounts of all income, expenditure, and transactions made on the donor's behalf
- Retain receipts and statements — keep evidence of all financial decisions in case they are questioned later
- Do not use the donor's money for your own benefit — unless the LPA specifically permits it or it falls within the limited rules on gifts
Tip: Keep a simple spreadsheet or notebook recording every transaction you make on behalf of the donor. The OPG can ask to see your records at any time, and clear record-keeping protects both you and the donor.
Restrictions on Gifts
Attorneys have very limited power to make gifts from the donor's estate. Under the Mental Capacity Act 2005, you may only make gifts in the following circumstances:
- Customary occasions — such as birthdays, Christmas, weddings, or civil partnership ceremonies, but only to people who are related to or connected with the donor
- Charitable donations — but only to charities the donor previously supported or would be expected to support
- The value of any gift must be reasonable and proportionate to the size of the donor's estate
You cannot make large gifts, transfer property, or carry out inheritance tax planning without the express permission of the Court of Protection. This applies even if you believe it is what the donor would have wanted.
Duty of Care and Skill
Attorneys must exercise reasonable care and skill when carrying out their duties. This means:
- Making informed decisions rather than acting impulsively
- Seeking professional advice when dealing with matters outside your expertise (for example, complex investments or tax matters)
- Not neglecting your responsibilities or failing to act when action is needed
- Consulting with the donor (where they have some capacity) and with other attorneys if appointed jointly
If you are a professional attorney (such as a solicitor or accountant acting in that capacity), a higher standard of care is expected of you.
What Happens If an Attorney Breaches Their Duties?
Attorney misconduct is taken seriously. If an attorney fails to meet their responsibilities, the consequences can be significant:
OPG Investigation
Anyone can raise a concern with the Office of the Public Guardian. The OPG has the power to investigate and can require attorneys to produce accounts and records.
Court of Protection
The Court of Protection can revoke the LPA, remove the attorney, appoint a replacement, or make any order it considers necessary to protect the donor. See our guide on whether an LPA can be cancelled or changed for more detail.
Financial Liability
An attorney who mismanages the donor's finances can be held personally liable for any losses. The court can order the attorney to repay money to the donor's estate.
Criminal Prosecution
In serious cases involving fraud, theft, or wilful neglect, an attorney can face criminal charges. Abuse of a position of trust is treated very seriously by the courts.
How the OPG Supervises Attorneys
The Office of the Public Guardian is the body responsible for supervising attorneys and deputies in England and Wales. Their role includes:
- Maintaining a register of all LPAs
- Investigating concerns raised about attorneys
- Working with local authorities, the police, and the Court of Protection when safeguarding issues arise
- Providing guidance to attorneys on their duties
The OPG can be contacted by anyone who has concerns about how an attorney is behaving. They take reports seriously and have wide-ranging investigatory powers. If you are acting as an attorney, it is in your interest to keep thorough records and act transparently.
Remember: Being an attorney is a privilege and a responsibility. If you ever feel uncertain about a decision, seek professional advice. It is far better to take your time and get it right than to act hastily and face consequences later.
More Guides About Attorney Powers and Duties
How attorneys register an LPA with banks and what they can do with the donor's accounts. Can Attorneys Make Financial Decisions?
The scope of an attorney's financial authority under a Property and Financial Affairs LPA. Can an Attorney Sell Your Property?
When and how attorneys can sell a donor's home, including restrictions and safeguards. Can Attorneys Make Medical Decisions?
How a Health and Welfare LPA gives attorneys authority over healthcare and treatment choices. What Attorneys Are Not Allowed to Do
The legal boundaries and prohibitions that every LPA attorney must observe. How Attorneys Must Act in the Donor's Best Interests
What the best interests duty means in practice and how it shapes every attorney decision. Can Attorneys Be Paid?
Whether attorneys can claim expenses or receive payment for carrying out their role. Can Attorneys Give Gifts?
The strict rules on when and how attorneys may make gifts from the donor's estate. How Attorneys Manage Finances
A practical guide to budgeting, record-keeping, and day-to-day financial management as an attorney. What Happens When Attorneys Disagree?
How disputes between co-attorneys are resolved and when the Court of Protection gets involved. Can an Attorney Be Removed?
Grounds for removing an attorney and how the OPG and Court of Protection handle misconduct. When Does an LPA Come Into Effect?
The timing rules for each type of LPA and when attorneys can legally start acting. What Happens If an Attorney Dies?
How the death of an attorney affects your LPA and why replacement attorneys matter. What Happens If an Attorney Refuses to Act?
The formal disclaiming process and what it means for the LPA when an attorney steps down.
When you're ready to name your attorneys and create your LPA, our guided service makes the process straightforward. See pricing.
Key Takeaways
- Best interests are paramount — every decision must be guided by the donor’s past wishes, values and preferences, not what is convenient for the attorney.
- Follow the five Mental Capacity Act principles — presume capacity, support decision-making, allow unwise decisions, act in best interests, and choose the least restrictive option.
- Keep money strictly separate — never mix the donor’s funds with your own, and maintain detailed records of every transaction.
- Gift-making powers are very limited — only small, reasonable gifts on customary occasions; anything beyond that requires Court of Protection approval.
- Breach of duty has real consequences — the OPG can investigate, the Court of Protection can remove the attorney and order financial repayment, and serious cases can lead to criminal prosecution.
Key Questions on Attorney Duties
Can an attorney use the donor's money to buy themselves gifts?
No. Attorneys have very limited gift-making powers. They may only give gifts on customary occasions like birthdays or Christmas, to people connected with the donor, and the gifts must be reasonable relative to the donor's estate. Using the donor's money for personal benefit is a breach of duty.
What happens if an attorney mismanages the donor's finances?
The OPG can investigate, and the Court of Protection can remove the attorney, revoke the LPA, and order the attorney to repay any losses. In serious cases involving fraud or theft, the attorney may face criminal prosecution.
Does an attorney have to keep records of financial decisions?
Yes. Attorneys are expected to keep clear, detailed records of all income, expenditure, and transactions made on the donor's behalf. The OPG can request to see these records at any time, and good record-keeping protects both the attorney and the donor.
This guide was last reviewed and updated on . Information is based on current legislation and OPG guidance for England and Wales.
Official Guidance
Further reading from GOV.UK
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