What records should an attorney keep under a Lasting Power of Attorney?

The Mental Capacity Act 2005 (MCA) sets out the framework under which attorneys must operate. Section 4 requires that every decision made on behalf of someone who lacks mental capacity must be made in their best interests. Crucially, the MCA also requires that you can demonstrate this. A decision is not compliant simply because it felt right at the time. You need to be able to show the reasoning behind it.

The OPG’s own guidance for attorneys is explicit: you should keep records of significant decisions and the reasoning behind them. If you are ever investigated, or if there is a dispute, those records are what will count. Contemporaneous notes, written at the time a decision was made, carry far more weight than anything reconstructed after the fact.

There are five main types of record that every attorney should maintain. How detailed each one needs to be depends on the nature of the decisions involved, but none should be ignored entirely.

1. Decision records

Every significant decision you make on behalf of the donor should be recorded. This means not just what you decided, but why. A good decision record covers:

• What the decision was, described clearly and specifically
• When it was made, with an exact date
• What options you considered and why you chose this one over the alternatives
• How the decision reflects the donor's known wishes, feelings, beliefs and values
• Who you consulted, if anyone, including family members, doctors, or social workers
• Whether the donor had the capacity to be involved in the decision, and if so, how they were involved
• Whether there were any time pressures or exceptional circumstances

Not every minor decision needs a full write-up. Buying everyday groceries does not require a formal record. But choosing a care home, consenting to a significant medical procedure, or making a large financial transaction certainly does.

2. Capacity observations

The MCA requires you to assess whether the donor has capacity to make a specific decision at the time it needs to be made. Capacity is not a fixed state. Someone may have capacity one day and not the next, or may have capacity for some decisions but not others. Keeping a record of these assessments is important, particularly if capacity is fluctuating.

A capacity note should record the date, the specific decision or domain being assessed, whether the person appeared to understand the information relevant to the decision, whether they could retain it, weigh it up, and communicate a decision. You do not need to be a medical professional to make this observation, but you should record what you observed and why you reached the conclusion you did.

3. Financial records

If you hold a Property and Financial Affairs LPA, the expectation around financial record keeping is particularly high. The OPG expects attorneys to keep accounts that show:

• All income received on the donor's behalf
• All expenditure made from the donor's funds
• Receipts, invoices and bank statements to support significant transactions
• A clear separation between the donor's finances and your own
• Annual accounts, ideally in the format of the OPG’s PA11 form

Many attorneys make the mistake of thinking a bank statement is sufficient on its own. It is not. A bank statement shows that a payment was made. Your records need to show why it was made and that it was in the donor's best interests.

4. Supporting documents

Beyond day-to-day records, you should keep a copy of the registered LPA itself, along with the OPG reference number and the date of registration. Medical letters, care assessments, professional advice you have relied on, and any communications from health or social care professionals should all be retained. If a solicitor or financial adviser has been involved in a decision, keep a note of their involvement.

5. Communications

If there have been significant conversations with family members, care home staff, doctors or social workers about the donor’s care or finances, it is worth keeping a brief note of what was discussed and any decisions or agreements that resulted.

There is no fixed statutory period for LPA records, but the generally accepted standard is at least seven years after the LPA ends. The LPA ends when the donor dies, when it is revoked, or when your role as attorney comes to an end. The OPG can investigate complaints and conduct reviews during that whole period, and in some cases beyond it.

For financial records, following the same standards you would apply to personal tax records is a sensible minimum. Keep anything that might be needed to explain a financial decision or transaction.