Most attorneys acting under a Lasting Power of Attorney are doing their absolute best for someone they love. But good intentions and legal compliance are not the same thing, and the mistakes that most often lead to OPG investigations, family disputes, and even Court of Protection proceedings are not the obviously bad ones. They are the quiet, accumulative errors that build up over months and years.
Understanding the most common pitfalls is the first step to avoiding them.
1. Not keeping records from the start
This is by far the most common problem. Many attorneys assume they will “sort the paperwork out later” and then later never quite arrives. By the time a question is raised about a decision made 18 months ago, the details have faded, receipts have been lost, and the reasoning that seemed obvious at the time is now difficult to reconstruct.
Contemporaneous records, written at or near the time of the decision, carry enormous weight with the OPG. Reconstructed accounts do not. Start keeping records from the first day you act under the LPA, and maintain them consistently.
2. Mixing finances
Using the donor’s money for shared expenses, paying things out of your own account and forgetting to claim back, or simply not keeping their finances clearly separate from yours, are all problems that look very suspicious under scrutiny.
Even where there is a completely innocent explanation, mixed finances are extremely difficult to untangle, and the appearance of financial irregularity is almost as damaging as the reality. Keep the donor’s money in accounts in their name, and document any situation where your own funds and theirs genuinely do interact.
3. Making gifts without authority
Attorneys often underestimate how strictly the rules around gifts are applied. Under the Mental Capacity Act, you can only make gifts from the donor’s funds in limited circumstances: customary gifts to people the donor would normally give to, on customary occasions, at a value that is reasonable given their financial position.
Regular financial support for family members, large one-off payments to children or grandchildren, or any gift that benefits you personally as the attorney, all of these require either specific authority in the LPA or a Court of Protection order. Proceeding without that authority, even if the donor would have approved, can constitute financial abuse.
A case that illustrates the problem
An attorney manages her husband’s finances under a Property and Financial Affairs LPA after he develops dementia. She continues a practice of giving their adult children an annual cash gift at Christmas, as her husband always did. After his death, one of the children raises a concern with the OPG. Because she cannot demonstrate that each gift met the “customary gift” threshold, and because she has no records of the amounts or the reasoning behind them, the matter is referred to the Court of Protection. Even though she acted entirely in the spirit of what her husband would have wanted, the legal position is deeply uncomfortable.
4. Acting beyond the scope of the LPA
An LPA only authorises you to do what it says. A Property and Financial Affairs LPA does not give you authority over health and welfare decisions, and vice versa. A Health and Welfare LPA does not give you the authority to make financial decisions.
Within those boundaries, the LPA may also contain specific conditions or restrictions. Read the LPA document carefully, particularly the specific instructions and conditions section. Acting outside those boundaries can invalidate your decisions and expose you to personal liability.
5. Not consulting when you should
Section 4 of the Mental Capacity Act sets out a list of people the attorney must consult when making a best interests decision. These include, where reasonably practicable:
- Anyone named in the LPA as someone to be consulted
- Anyone engaged in caring for the donor or interested in their welfare
- The donor themselves, to the greatest extent possible
- Any deputy appointed by the Court of Protection
Failing to consult does not automatically make a decision invalid, but it can be a significant weakness if a decision is ever challenged. More importantly, consulting people who know the donor well is often how you find out what they would actually have wanted.
6. Treating the LPA as a blank cheque
The LPA gives you authority, but it does not give you permission to do whatever you think is best without any further thought. Every significant decision still needs to be made through the best interests framework of the Mental Capacity Act. You must still consider the donor’s wishes, feelings, beliefs and values. You must still consider the least restrictive option. You must still document your reasoning.
Attorneys who treat the LPA as simply meaning “I can now decide” tend to be those who end up in the most difficulty.
7. Not acting when the LPA becomes active
A Health and Welfare LPA can only be used when the donor lacks the capacity to make a specific decision. Acting under it while the donor still has capacity is itself a breach of the MCA. The right approach is to assess capacity decision by decision, involve the donor as much as possible, and only step in to make a decision yourself when genuine incapacity has been established.
The opposite error also occurs: attorneys who wait too long to act, or who defer to the donor’s expressed preferences even when the donor lacks the capacity to make a safe decision, can also find themselves criticised for inaction.
The attorneys who face the least scrutiny from the OPG are not necessarily those who made the easiest decisions. They are the ones who can demonstrate, clearly and consistently, that they thought carefully, consulted properly, and documented everything.
Avoid the mistakes most attorneys make
Wardly walks you through best interests decision-making, prompts you to record alternatives and consultations, and keeps a tamper-evident log that holds up under OPG scrutiny.
Start your free logFrequently asked questions
What happens if I have already made mistakes without realising?
The most important thing is to take stock honestly and, going forward, do things properly. If there are specific issues that worry you, for example gifts you have already made or mixed finances, taking legal advice from a solicitor experienced in Court of Protection matters is sensible.
Can I be held personally liable for mistakes made as an attorney?
In serious cases, yes. Where an attorney has misused funds or acted deliberately outside their authority, the Court of Protection can order them to repay the donor’s estate. Criminal prosecution is also possible in cases of financial abuse.
What if I disagree with a medical professional’s recommendation?
You can disagree, and you have the right to seek a second opinion. But you must record your reasoning carefully, demonstrate that you have genuinely engaged with the medical advice, and make clear how your decision reflects the donor’s best interests. Overriding professional advice without documented reasoning is a significant risk.
Is it a problem if I have been using my own money to cover the donor’s expenses?
It is not necessarily wrong if you keep clear records of what was spent and are reimbursed from the donor’s funds. The problem arises when there is no clear record, the amounts are not reimbursed, or the practice becomes so routine that the finances effectively become mixed.