What an attorney can and cannot do: gifts, spending and the OPG rules

Yes, but only within narrow limits. An attorney under a property and financial affairs LPA can give customary presents of a reasonable size, for birthdays, weddings, Christmas and the like, to people the donor would normally have given to, and to charities the donor supported. Anything larger, including gifts made to cut inheritance tax, needs the Court of Protection's permission first. Every gift must be in the donor's best interests, from the donor's own money, and written down.

The law: section 12 and the OPG practice note

The rule is in section 12 of the Mental Capacity Act 2005. It allows gifts in two situations and no others, unless the court says so or the donor still has capacity and decides for themselves.

• On a customary occasion, to a person related to or connected with the donor. The Act lists births, birthdays, marriages, civil partnerships and anniversaries, then any other occasion on which presents are customarily given within families or among friends, which covers Christmas, Eid and Diwali. The connected person can be the attorney.
• To a charity the donor gave to, or might have been expected to give to.

In both cases the value must not be unreasonable, judged against all the circumstances and in particular the size of the donor's estate. The LPA itself can narrow this further, for example by banning gifts to attorneys. It cannot widen it.

The Office of the Public Guardian sets out how it reads that section in its practice note on gifts, re-issued on 25 February 2026. Its questions are simple. Was the occasion customary? Is the recipient someone the donor would have given to? Is the amount reasonable against the estate, the donor's income, and the cost of their care for life? Does it match the donor's own habits? If your mother gave each grandchild £20 at Christmas, £20 is the benchmark.

A worked example. Margaret is 84 and has dementia, a house worth £220,000 and £60,000 in savings, which top up her care home fee by about £400 a month. She always gave £30 to each of five grandchildren at birthdays and Christmas, £50 a year to the lifeboats, and £100 to her daughter each December. Her son, as attorney, can carry that on, and a £250 present when a granddaughter marries fits her habits and the estate. He cannot, without the court, give each of his own children £10,000 towards a deposit because Mum would have wanted it, or pay himself £3,000 a year to use the tax allowance. Both are outside section 12, and the savings are paying the shortfall.

Gifts that do not look like gifts

If the donor's estate ends up smaller for someone else's benefit, it is a gift and section 12 applies. The ones people miss:

• An interest-free loan to a relative. The interest forgone is a gift. With no real prospect of repayment, the whole loan is.
• Selling the donor's car, home or anything else below its value. The gap is a gift to the buyer.
• Paying a relative's bills, school fees or holiday from the donor's account, or buying something that ends up in your name.
• Letting a family member live in the donor's house rent free, or for a token rent. The rent not charged is a gift, every month.
• An early inheritance. Anything described that way is a gift now, whatever the will says.

Paying yourself

Out-of-pocket expenses, yes. Postage, mileage to the bank or care home, phone calls, the fee for a certified copy of the LPA. Claim what you actually spent, keep the receipts, note each claim.

A fee for acting as attorney, only if the LPA says so. LPAs appointing a solicitor usually include a charging clause. LPAs appointing family usually do not. If yours is silent, you cannot set a fee yourself or pay yourself a wage for the time the role takes.

Care you provide yourself is the hard case. If you have cut your hours to look after your father and want paying from his money, the payment goes to you, so it is a conflict of interest and outside section 12. The OPG's position is that you ask the Court of Protection for authority before you take anything. The court looks at what a paid carer would cost and, in general, allows less. Asking afterwards is a far weaker position.

Spending the donor's money on the donor

This is what the LPA is for. Care fees, the house and its repairs, insurance, council tax, heating, food, clothes, the hairdresser, a new armchair, outings. Nobody at the OPG will question money spent keeping the donor comfortable, living the life they would have chosen. Being mean with the donor's money is as much a failure of the role as being loose with it. Best interests means consulting the donor where you can and weighing their past wishes, beliefs and values.

Three habits keep you out of trouble:

• Keep the donor's money separate. Their accounts stay in their name, with the bank noting you as attorney. No joint account with you, and none of your own money through theirs.
• Keep accounts. A simple ledger of what came in, what went out and to whom, with statements and receipts for anything beyond routine shopping. Note every gift, however small, with date and occasion.
• Expect to be asked. The OPG can ask any attorney for accounts at any time, and will if someone raises a concern. If you cannot show where the money went, the assumption runs against you.

When you need the Court of Protection

The court can authorise what section 12 does not. The application fee is £432, plus £259 if a hearing is held. You need it for:

• Any gift beyond the customary. A lump sum to a child, a house deposit, paying off a grandchild's student loan.
• Inheritance tax planning. Regular gifts out of surplus income, annual exemptions beyond what the donor habitually gave, moving money into trust. The practice note describes a small band of tax-motivated gifts the OPG will not usually take issue with, but it is narrow and depends on the donor's life expectancy, the estate and the cost of care. Read it against your facts, or ask.
• Changing the donor's will. Never. An attorney has no power to make, change or revoke a will, whatever the LPA says. Where the donor has lost capacity and their will no longer works, only the court can make a statutory will.
• Selling the donor's home to a family member, or to yourself. Selling to yourself is self-dealing and needs the court's authority even at full price. Selling to a relative needs an independent valuation, a sale at that value, and in most cases court authority too.

The safeguards around attorneys and how concerns are raised are covered in the guide on who can override a power of attorney.

What goes wrong

Most attorneys who end up in trouble did not set out to steal. They blurred the line between the donor's money and the family's, stopped keeping records, and could not explain themselves. Then, in order:

• An OPG investigation. It starts with a concern from a bank, a care home, a social worker or a relative. You are asked for accounts and an explanation, and a Court of Protection visitor may call on the donor.
• Removal. The court can revoke the LPA and remove you. A professional deputy is often appointed instead, paid from the donor's money.
• Repayment. The court can order you to restore what was given or spent outside your authority, and to pay the costs personally.
• Care funding. A gift that reduced the donor's capital can be treated as deliberate deprivation. The council then assesses the donor as if they still had the money, with no time limit.
• The police. Dishonestly using the donor's money for your own benefit is fraud by abuse of position under the Fraud Act 2006. Attorneys are prosecuted for it and sent to prison.

Joint attorneys can disagree. If you were appointed jointly, every decision needs all of you, so a deadlock means no gift. If you were appointed jointly and severally, any one of you can act, but the others share the duty to speak up if something looks wrong. Where you are stuck, the OPG can advise and the court can decide.

What to do next

Ask before, not after. Court authority obtained in advance is a shield. An application after the money has gone is an apology, and the court may not accept it.

Check the facts first. Read the LPA for any restriction on gifts. Look at the donor's own pattern of giving. Work out what the estate needs to cover care for life, and only then what is spare.

Then talk to a regulated solicitor. Aaron, an SRA-regulated solicitor and STEP member, advises attorneys on what they may do and prepares Court of Protection applications where a gift, a payment or a sale needs authority, for a fixed fee agreed in writing before anything starts. Details are on the LPA service page, the complete guide to lasting powers of attorney explains how LPAs work, and the Plan Finder points you to the right starting place. A free 15-minute call comes first, and that is where Aaron will say whether you need an application at all.

This page is general information about the law of England and Wales, not legal advice. The right answer depends on the LPA, the donor's estate and habits, and your own facts.