Power of Attorney Duties and Responsibilities in Wales

Attorneys Are Fiduciaries, Not Owners

An attorney appointed under a Lasting Power of Attorney does not own the donor's assets. They manage them. The Mental Capacity Act 2005 imposes strict legal duties, and breaching them can lead to removal by the Court of Protection, personal financial liability, and in serious cases, criminal prosecution.

The core duty is straightforward: act in the donor's best interests. Every decision an attorney makes — whether it involves paying bills, choosing a care home, or selling a property — must be made for the donor's benefit, not the attorney's. This is not a suggestion; it is a statutory obligation with real enforcement mechanisms.

The Seven Core Duties

Under the Mental Capacity Act 2005 and OPG guidance, an attorney must:

1. Follow the Act's statutory principles — always assume the donor has capacity unless proven otherwise, and always consider less restrictive alternatives before stepping in
2. Act in the donor's best interests — taking into account the donor's past and present wishes, beliefs, values, and any written preferences or instructions in the LPA
3. Have regard to the OPG's Code of Practice — the Mental Capacity Act Code of Practice is not optional reading; attorneys are legally expected to follow it
4. Only act within the scope of the LPA — a financial attorney cannot make healthcare decisions, and a health attorney cannot sell property
5. Keep the donor's money and property separate from their own — no mixing of accounts, no using the donor's funds for personal expenses, no "borrowing" with the intention to repay
6. Keep accurate records — maintaining accounts of all financial transactions and being able to justify every decision
7. Not delegate authority — the attorney was personally chosen by the donor and cannot hand that responsibility to someone else (though they can employ professionals, like an accountant, to provide advice)

What Attorneys Must Not Do

Some boundaries are absolute:

• No gifts beyond customary amounts — an attorney can buy reasonable birthday or Christmas presents on the donor's behalf, proportionate to the donor's estate. A £20 gift from a modest estate is fine; a £5,000 "gift" from a small pension pot is not.
• No changes to the donor's will — an attorney has no power to create, change, or revoke the donor's will, regardless of the LPA type.
• No restraint or deprivation of liberty — unless specifically authorised by the Court of Protection. An attorney cannot lock the donor in their home "for their safety."
• No decisions the donor can still make — particularly for Health and Welfare LPAs, the attorney's power only activates for decisions the donor lacks capacity to make themselves.

Reporting Attorney Abuse

Financial abuse by attorneys is a documented problem. Common patterns include transferring the donor's property into the attorney's name, running up the donor's credit cards, making excessive "gifts" to themselves, or simply neglecting the donor's affairs while drawing down their savings.

Anyone can report concerns to the OPG — you do not need to be a family member or named in the LPA. Reports can be made by:

• Calling the OPG safeguarding team directly
• Contacting the local authority's adult safeguarding team in Wales (the Social Services and Well-being (Wales) Act 2014 gives local authorities specific investigation powers)
• Reporting to the police if criminal theft or fraud is suspected

The OPG can investigate, require the attorney to produce financial accounts, and apply to the Court of Protection to have the attorney removed and replaced. In Wales, an authorised local authority officer can apply to the Magistrates' Court under Section 127 of the Social Services and Well-being Act 2014 for an Adult Protection and Support Order (APSO), which authorises the officer, accompanied by police, to enter premises and speak privately with a vulnerable adult suspected of being under coercive control.

Record Keeping in Practice

The OPG can require an attorney to produce accounts if a concern is raised. Good practice means keeping:

• A running log of all income received and payments made from the donor's accounts
• Receipts for significant purchases
• Records of any decisions about care, property, or investments — including the reasoning
• Copies of any professional advice obtained (solicitor letters, financial advisor recommendations)

For deputies appointed by the Court of Protection, annual reporting to the OPG is mandatory. For LPA attorneys, there is no automatic annual report requirement — but the OPG can demand accounts if a concern is raised, and having clean records is the best protection against allegations.

Our Wales LPA toolkit includes an attorney powers summary card and document storage checklist to help attorneys stay organised from day one.

See more Wales guides →