Power of Attorney Duties and Responsibilities
If someone has appointed you as their attorney under a Lasting Power of Attorney, you must act in their best interests, keep their money separate from your own, keep a record of the decisions you make, and stay within what the document allows. Your authority ends the moment they die.
This guide is for England and Wales. The rules are different in Scotland and Northern Ireland.
Being asked to be someone's attorney is a compliment, and it can also feel like a lot. Most people we speak to are not worried about the big legal principles. They are worried about the ordinary things: whether they are allowed to move money, whether they should be keeping receipts, and whether they are about to get something wrong. Here is what the job actually involves.
What is a power of attorney, and what does POA mean?
A power of attorney is a legal document that lets one person make decisions on behalf of another. The person giving that authority is the donor. The person receiving it is the attorney. You will often see it shortened to POA, and you will see LPA used for the modern version, a Lasting Power of Attorney.
There are two types, and your duties depend on which one you hold.
A property and financial affairs LPA covers money and property: bank accounts, bills, pensions, benefits, investments, and buying or selling a home.
A health and welfare LPA covers care and medical decisions: where the donor lives, their daily routine, the care they receive, and in some cases life-sustaining treatment.
Someone can appoint you under one, or both, and the two behave differently in practice. That difference matters most when you are working out when you are allowed to start.
The words you will keep running into
Donor. The person who made the Lasting Power of Attorney and gave someone authority to act for them. It is their money, their care and their decisions throughout.
Attorney. The person appointed to make decisions for the donor. Nothing to do with the American sense of the word. You do not need to be a lawyer, and most attorneys are family members.
Best interests. The legal test an attorney has to apply to every decision, set out in section 4 of the Mental Capacity Act 2005. It means making the decision that is best for the donor, taking account of their wishes, feelings, beliefs and values rather than simply making the decision you would make for yourself.”
Fiduciary duty. The obligation to put the donor's interests ahead of your own in everything you do with their affairs. It is the reason you cannot benefit from the role.
Jointly and severally. An appointment where any attorney can act alone or all of you can act together. The alternative, jointly, means every attorney has to agree on every decision.
Deputy. Someone appointed by the Court of Protection to make decisions for a person who has already lost capacity and has no Lasting Power of Attorney in place.
When can you start acting as someone's attorney?
Not as soon as the document is signed. An LPA has to be registered with the Office of the Public Guardian before anyone can use it, and registration takes time. A signed but unregistered LPA gives you no authority at all.
Once it is registered, the two types diverge.
A health and welfare LPA can only be used once the donor is unable to make the particular decision themselves. While they can still decide where they live or what treatment to accept, that decision stays theirs, even if you disagree with it.
A property and financial affairs LPA can often be used while the donor still has capacity, if that is what they wanted and the document does not say otherwise. Plenty of people set one up precisely so a son or daughter can manage the banking while they are still perfectly able to decide things for themselves. If the LPA restricts this, the restriction is written into the document, so read it before you do anything.
If you are not sure which situation you are in, check the LPA itself first. It is the instruction manual, and tells you what authority you have
What are your duties and responsibilities as an attorney under a POA?
Your duties come from three places: the
Mental Capacity Act 2005, the
Code of Practice that sits underneath it, and the wording of the LPA the donor signed. You are also in what the law calls a fiduciary position, which means the donor's interests come before your own in everything you do with their affairs.
| Your duty | What it means day to day | Where it comes from |
|---|---|---|
| Act in the donor's best interests | Every decision you make has to be for them, not for you or for the wider family | Mental Capacity Act 2005, section 4 |
| Assume they can decide until it is shown they cannot | Do not take over a decision they are still capable of making | Mental Capacity Act 2005, section 1 |
| Help them decide before deciding for them | Give information in a way they can follow, at a time of day when they are at their best | Mental Capacity Act 2005, section 1 |
| Stay inside what the LPA allows | Read the document. Any conditions or restrictions in it are binding | The LPA itself |
| Take reasonable care | Apply the same care you would to your own affairs, and more if you are being paid for professional skill | Common law duty of care |
| Keep their money separate from yours | No joint pots, no paying their bills from your account and settling up later | Office of the Public Guardian guidance |
| Keep records | Write down the significant decisions, and keep accounts of what comes in and goes out | Office of the Public Guardian guidance |
| Do not benefit yourself | You are not there to gain from the role, beyond genuine expenses | Fiduciary duty |
| Avoid conflicts of interest | If a decision would benefit you or someone close to you, get advice before making it | Fiduciary duty |
| Keep their affairs private | The donor's information is theirs, not the family's | Fiduciary duty |
| Do not hand the job to someone else | You were chosen. You cannot delegate the decisions to another person | Fiduciary duty |
If you only remember two of these, remember the first and the sixth. Most of the cases where an attorney gets into difficulty start with money that was never properly separated.
What does acting in someone's best interests actually mean?
It is the phrase everyone quotes and almost nobody defines, so here is the practical version.
It does not mean doing what you would do. It does not mean doing what the family agrees on. “It means making the decision that is best for the donor, while taking proper account of what they want, what they have said in the past, and the beliefs and values that matter to them.”
Section 4 of the Mental Capacity Act 2005 asks you to think about their past and present wishes, their beliefs and values, and anything they used to say mattered to them. It asks you to involve them as far as they are able, even when they cannot make the final call. It asks you to consult the people close to them where that is practical. And it tells you not to assume anything about what someone wants based on their age, their appearance, or their diagnosis.
It also asks you to choose the option that restricts their freedom least. If there are two ways to keep someone safe, the less restrictive one is usually the right one.
A useful test: if the donor could see the decision you are about to make, would they recognise it as something they would have chosen? If the honest answer is no, think again.
What records do you need to keep?
More than most people expect, and less than most people fear.
Government guidance for attorneys asks you to keep a record of the important decisions you make and when you made them. You do not need to log every small daily thing. If you are handling money, you should also keep a record of the donor's assets, their income, and how you have spent their money.
In practice that means keeping the bank statements, keeping the receipts, and writing a short note when you make a decision that someone might reasonably ask about later. Selling a car, changing a care arrangement, moving savings: those are worth a line in a notebook with the date and the reason.
Keep the donor's money in the donor's own account. Do not move it into yours, even briefly, and even with the best intentions. If the Office of the Public Guardian ever looks at what you have done, clean separate records are the difference between a short conversation and a long one.
Can you be paid, or claim expenses?
You can claim your reasonable out-of-pocket expenses. The Office of the Public Guardian lists travel, postage, stationery, phone calls and professional fees as legitimate costs. Keep the receipts and record what you have claimed against the donor's money.
Being paid for your time is a different question. If you are a family member or a friend acting as a lay attorney, you cannot charge for your time unless the LPA specifically says you can. If you are a professional, a solicitor or an accountant for instance, you can charge, but only where the document allows it.
The distinction trips people up because the work is often substantial and genuinely feels like a job. It usually is. It is still unpaid unless the donor said otherwise in writing.
Can you give gifts, or spend the donor's money on yourself?
This is the single most common question we are asked, and it is worth being precise about, because it is also where attorneys most often get into trouble without meaning to.
What you can usually do
Section 12 of the Mental Capacity Act 2005 draws the line. You can make gifts on customary occasions: birthdays, weddings, civil partnerships, anniversaries, the birth of a child. Those gifts can go to people related to or connected with the donor, including yourself. You can also give to charities the donor gave to, or would reasonably have been expected to give to.
There is a condition attached to all of it. The gift has to be reasonable in the circumstances, and in particular reasonable against the size of the donor's estate. A £50 birthday present from a substantial estate is one thing. A £5,000 one is another. “You should also consider the donor's previous pattern of giving and whether they can comfortably afford the gift after taking account of their present and future needs.”
What you cannot do without permission
Anything beyond that needs an order from the Court of Protection first. That includes larger gifts, gifts made for inheritance tax planning, interest-free loans to family, and selling the donor's property to yourself or a relative at less than it is worth.
And what you must not do at all
Use the donor's money for your own benefit. Government guidance is blunt about the consequence: you can be ordered to repay money you have misused or spent to benefit yourself.
If you are looking at a decision and thinking "this is probably fine", that hesitation is worth taking seriously. Ask before you act, not after.
What if there is more than one attorney? Can two siblings both do it?
Yes, and it is very common. What matters is how the donor said you should work together, because it is written into the LPA and it is binding.
| Jointly | Jointly and severally | |
|---|---|---|
| Who decides | Every attorney has to agree on every decision | Any of you can decide alone, or you can decide together |
| In practice | Slower, and every document needs all signatures | Much more workable day to day |
| If one of you cannot act | The LPA usually fails entirely, unless the donor appointed replacement attorneys | The others carry on |
Some donors mix the two, asking their attorneys to act jointly for big decisions such as selling a house and jointly and severally for everything else. If that is what the document says, follow it.
If you and your co-attorney genuinely cannot agree, you cannot simply outvote each other. ” - The Court of Protection can be asked to decide, though it is work taking advice long before it gets that far.
What can an attorney not do?
Some decisions are outside your authority no matter how sensible they would be.
You cannot make or change the donor's will. Only the Court of Protection can authorise a will for someone who lacks the capacity to make one themselves, which is called a statutory will.
You cannot make a decision the donor is still capable of making. Capacity is decision-specific, so someone might be unable to manage their investments and perfectly able to choose where they go on holiday.
You cannot go beyond the LPA's own instructions, and you cannot use a health and welfare LPA to make financial decisions or the other way round.
Your primary duty is to the donor, not to keeping the rest of the family happy. Relatives often expect to be consulted, and consulting them is frequently sensible, but your obligation is to the donor. If those two pull in opposite directions, the donor wins.
What happens when the donor dies?
Very few guides answer this, and it matters more than almost anything else on this page.
The LPA ends the moment the donor dies. Not when probate starts, not when the funeral is over. Immediately.
From that point you have no authority over their money or their affairs. If you keep paying bills from their account, close accounts, or distribute belongings, you are acting without authority, even though you were acting with authority the day before.
What happens instead is that responsibility passes to the executors named in the will, or to the administrators if there is no will. You may well be one of them, and if you are, your authority now comes from that role, not from the LPA.
Three steps, in order:
1. Stop using the LPA. Freeze what you were doing with the donor's money and tell the bank. Do not carry out any further transactions under the LPA
2. Notify the Office of the Public Guardian. Send them the original LPA and a copy of the death certificate.
3. Hand over to the executors. Pass on your records. The accounts you kept while acting as attorney are genuinely useful to whoever is administering the estate.
If you were both the attorney and are now the executor, it can feel like nothing has changed. Legally, everything has. Our guide to what to do when someone dies sets out what comes next, and the executor's role explains the job you are now doing instead.
Attorney or deputy: what is the difference?
People mix these up constantly, and the difference is about timing.
| Attorney | Deputy | |
|---|---|---|
| How you are appointed | The donor chooses you, in advance, while they have capacity | The Court of Protection appoints you, after capacity has been lost |
| When it is set up | Before it is needed | Once there is no LPA and a decision has to be made |
| Ongoing supervision | Light. The Office of the Public Guardian can investigate concerns | Ongoing. Annual reports to the Office of the Public Guardian, plus a supervision fee |
| Cost | Registration fee, one off | Application fee, annual supervision fee, and usually a security bond |
| Speed | Available as soon as it is registered | Months |
The short version: an LPA is something you arrange in advance, and deputyship is what happens when nobody did. If you are reading this because a relative has already lost capacity and there is no LPA in place, deputyship is the route, and our deputyship solicitors page explains how it works.
Worried about how an attorney is behaving?
If you think an attorney is misusing their position, mismanaging money, or ignoring the donor's wishes, the Office of the Public Guardian can investigate, and it has the power to apply to the Court of Protection to have an attorney removed.
You do not need proof before you raise it. If something looks wrong, report it. The Court of Protection can also step in where an attorney and the family cannot agree.
Can you stop being an attorney?
Yes. Nobody is trapped in the role.
If the donor still has capacity, you can simply tell them, and they can appoint someone Court of Protection can also step in where an attorney and the family cannot agree.
If they no longer do, you can formally step down by signing a deed of disclaimer and sending it to the donor and to the Office of the Public Guardian.
It is worth thinking about who takes over before you do it. If the donor appointed replacement attorneys, they step up. If they did not, and you were the only attorney, someone may have to apply for deputyship instead. That is not a reason to keep going if you cannot manage. It is a reason to get advice first.
If you are not sure, ask before you act
Most of the attorneys we speak to are doing a careful job and want to know whether one particular decision is theirs to make. That is a short conversation, and it is far easier to have before the decision than afterwards.
We offer a free, no-obligation 20-minute chat. Call us on 0208 515 2790, and we will talk it through.
If you are setting up an LPA rather than acting under one, our Lasting Power of Attorney solicitors page explains how we can help.
Frequently asked questions
Does power of attorney end when someone dies?
Yes, immediately. The LPA ends at the moment of death and you have no further authority over the donor's money or affairs. Responsibility passes to the executors named in the will, or to the administrators if there is no will.
What does a POA do?
POA is shorthand for the power of attorney document itself, though people often use it to mean the person acting under it. That person is the attorney, and their job is to make decisions for the donor: managing money and property under a property and financial affairs LPA, or care and medical decisions under a health and welfare LPA.
Can two siblings have power of attorney?
Yes. The donor decides whether you act jointly, meaning you must agree on everything, or jointly and severally, meaning either of you can act alone. Check the LPA, because how you were appointed is binding.
Can a power of attorney transfer money to themselves?
Only in narrow circumstances. You can make reasonable customary gifts on occasions such as birthdays, and you can claim genuine expenses. Moving the donor's money to yourself beyond that needs Court of Protection approval, and you can be ordered to repay anything you misuse.
How many attorneys can you have?
There is no fixed limit. Most people appoint two or three, plus replacement attorneys who step in if an original attorney can no longer act. More attorneys means more people to consult, so appointing a very large number tends to make the role harder.
Do I need probate if I have power of attorney?
Usually yes. The LPA ends at death, so it cannot be used to deal with the estate. Whether probate is needed depends on what the person owned, not on whether an LPA existed.
When can I start using a power of attorney?
Once it is registered with the Office of the Public Guardian. A health and welfare LPA can only be used once the donor cannot make the decision themselves. A property and financial affairs LPA can often be used sooner, if the document allows it.
Does an attorney have to keep accounts?
If you are handling money, yes. Keep a record of the donor's assets and income, and of how you have spent their money, along with a note of the significant decisions you make and when.
Can an attorney be paid for their time?
Only if the LPA says so. Family and friends acting as lay attorneys can claim reasonable expenses but cannot charge for their time unless the document permits it. Professional attorneys can charge where the LPA allows.
What is the difference between an attorney and a deputy?
An attorney is chosen by the donor in advance under an LPA. A deputy is appointed by the Court of Protection after capacity has already been lost, and is supervised by the Office of the Public Guardian with annual reporting and a yearly fee.
Author Bio:
Nasreen Akhter is the founding director of Ash Hill Solicitors and a private client solicitor with over a decade of experience in probate, wills, estate planning and elderly client care. Known for her calm, compassionate approach, she guides individuals and families through life's most sensitive legal matters with clarity and care.
Nasreen is also an accredited civil and commercial mediator, and is listed on the Solicitors Regulation Authority (SRA) register. Outside of work, she's a dedicated mum and chairs Happy Orphans Worldwide, a charity supporting vulnerable children worldwide.
