What Attorneys Are Not Allowed to Do

Written by Anthony Dalton · Reviewed by James Tyrrell · Last reviewed 9 April 2026

Being appointed as an attorney under a Lasting Power of Attorney comes with significant legal authority — but it is not a blank cheque. The Mental Capacity Act 2005 and the terms of the LPA itself set clear boundaries on what attorneys can and cannot do. Whether you are a donor choosing your attorneys or an attorney trying to understand your role, knowing these restrictions is essential.

Attorneys Cannot Make or Change the Donor's Will

One of the most important restrictions is that an attorney can never make, change, or revoke a will on behalf of the donor. This applies regardless of which type of LPA has been granted. Will-making is considered a deeply personal act, and even if the donor has lost capacity, their attorney has no authority to create or alter testamentary documents.

If a will needs to be made or changed on behalf of someone who lacks capacity, an application must be made to the Court of Protection for a statutory will. The court will consider evidence about the donor's wishes, family circumstances, and what would be in their best interests before making or approving a will on their behalf.

Attorneys Cannot Benefit Themselves

An attorney must never use their position for personal gain. This principle is fundamental to the duties of an attorney and is strictly enforced. Specific prohibitions include:

• Using the donor's money for personal expenses — the attorney cannot pay their own bills, buy personal items, or fund their lifestyle from the donor's accounts
• Transferring the donor's assets to themselves — such as putting the donor's property or savings into the attorney's name
• Making loans to themselves — an attorney cannot borrow money from the donor's estate
• Making investment decisions that benefit the attorney — for example, investing the donor's money in the attorney's own business

The only exception is where the LPA specifically permits certain benefits, or where the attorney is claiming reasonable out-of-pocket expenses incurred while carrying out their duties (such as travel costs to visit the donor).

Attorneys Cannot Vote on Behalf of the Donor

Voting is a personal right that cannot be exercised by an attorney. No LPA — whether for property and financial affairs or health and welfare — gives an attorney the power to cast a vote in any election or referendum on the donor's behalf. Similarly, an attorney cannot sign a petition, join a political party, or exercise any other political right for the donor.

Attorneys Cannot Act Outside the Scope of the LPA

Each type of LPA grants authority over specific areas. An attorney must stay within the scope of the LPA they have been appointed under:

• A Property and Financial Affairs attorney cannot make healthcare or welfare decisions
• A Health and Welfare attorney cannot manage the donor's bank accounts or financial affairs
• If the donor has included specific restrictions in the LPA, the attorney must follow them. For example, if the LPA states that the attorney must not sell the family home, they are legally bound by that instruction

Acting outside the scope of the LPA means the attorney has no legal authority for that decision, and any actions taken could be challenged or invalidated.

Attorneys Cannot Delegate Their Decision-Making Authority

An attorney cannot simply hand over their responsibilities to someone else. The donor chose the attorney because they trusted that specific person to make decisions. Delegating the decision-making to a third party — whether a family member, friend, or professional — is not permitted.

There is, however, an important distinction between delegation and seeking advice. An attorney can (and often should) consult professionals when making complex decisions — a financial adviser about investments, a solicitor about a legal matter. What they cannot do is hand over the decision-making itself. The attorney must always retain responsibility for the final decision.

Attorneys Cannot Ignore the Donor's Restrictions and Preferences

When creating an LPA, the donor can include both instructions (legally binding) and preferences (advisory). An attorney must follow all instructions included in the LPA. While preferences are not legally binding, an attorney who consistently ignores the donor's stated preferences could face scrutiny from the OPG, as it may indicate they are not acting in the donor's best interests.

Attorneys Cannot Make Unlimited Gifts

Attorneys have very limited authority to give gifts on behalf of the donor. Under the Mental Capacity Act 2005, gifts are only permitted:

• On customary occasions (birthdays, Christmas, weddings) to people connected with the donor
• To charities the donor previously supported or would be expected to support
• The value must be reasonable and not excessive relative to the donor's estate

Large gifts, inheritance tax planning, and significant charitable donations all require the approval of the Court of Protection. An attorney who makes unauthorised gifts can be required to repay them from their own funds.

What Happens If an Attorney Oversteps Their Powers?

If an attorney breaches these restrictions, there are serious consequences:

• OPG investigation — anyone can report concerns about an attorney to the Office of the Public Guardian
• Removal by the Court of Protection — the court can revoke the LPA and remove the attorney
• Financial liability — the attorney may be ordered to repay any losses caused to the donor's estate
• Criminal prosecution — in cases of fraud, theft, or wilful neglect, criminal charges may follow

How to Report Attorney Misconduct

If you believe an attorney is abusing their powers or acting outside the boundaries of the LPA, you can report your concerns to the Office of the Public Guardian (OPG). The OPG is responsible for supervising attorneys and investigating allegations of misconduct.

Anyone can raise a concern — you do not need to be a family member or involved in the LPA. Friends, neighbours, care workers, doctors, and other professionals can all report suspected abuse or misuse of authority.

To make a report, you can contact the OPG directly by phone, email, or post. They will assess the concern and, where appropriate, launch a formal investigation. In serious cases, the OPG can refer the matter to the Court of Protection, which has the power to remove the attorney and revoke the LPA.

For a detailed guide on the reporting process, see our page on how to report an attorney misusing an LPA.

Frequently Asked Questions

This guide was last reviewed and updated on 9 April 2026. Information is based on current legislation and OPG guidance for England and Wales.

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