What decisions cannot be made by a Power of Attorney?

Section 12 Mental Capacity Act 2005 allows Attorneys to make gifts on ‘customary occasions’ as long as the gift is reasonable in size, considering the size and nature of your estate. An Attorney cannot make large gifts from your assets which would fall outside the scope of section 12. In addition, it is possible to restrict your Attorney’s authority further within the LPA, if you wish to do so. If an Attorney wishes to make a gift which falls outside of section 12, they must first apply to the Court of Protection for approval. The court would only grant the application if the gift is considered to be in your best interests.

In addition;

• An Attorney cannot make or change your Will for you.
• An Attorney cannot ‘delegate’ their responsibilities to somebody else.
• Attorneys can claim their out-of-pocket expenses from your estate. However, they cannot decide to pay themselves for the time spent in dealing with your affairs, unless they are a professional Attorney and you have granted authority within the LPA document for them to charge for their time.
• If you have set out restrictions on your Attorney’s powers or authority within the LPA, then your Attorney cannot act outside the scope of their authority without an application to the Court of Protection. An example within the LPA for health and welfare is to restrict the Attorney’s authority so they cannot make ‘life sustaining treatment’ decisions for you. In that situation, the decision would be made by medical professionals on the basis of medical opinion as to your best interests.