Lasting Powers of Attorney (LPAs) were introduced by the Mental Capacity Act 2005 and replaced Enduring Powers of Attorney (EPAs) from 1 October 2007. They are dealt with by The Office of the Public Guardian (OPG), who are governed by the Ministry of Justice. According to the BBC One Morning Live programme broadcast on 31 March 2025, there has been a 28% increase in investigations into power of attorney abuse in the last year, rising from 2,849 cases to 3,647 in the UK. Ministry of Justice has confirmed that there are now more than 8 million LPAs and EPAs in place, meaning despite this significant percentage increase, the numbers remain relatively low. It is important to recognise that these numbers not only include malicious abuse by attorneys, but also inadvertent misuse due to attorneys not understanding the rules.
Misuse
As highlighted by BBC One Morning Live, two of the biggest areas of misuse is around gift giving and attorney reimbursement.
Attorneys acting under a power of attorney are permitted to make gifts on behalf of the donor, but only in limited circumstances. An attorney may make gifts on customary occasions (such as on birthdays or Christmas), provided that the gifts are made in line with how the donor would have made them if they had capacity to do so and are appropriate given the value of the donor’s estate. Gifts outside of this narrow power will usually require express authority from the Court of Protection.
Attorneys are also not entitled to be reimbursed for their time spent acting as an attorney, unless they are acting in a professional capacity. Agreeing to act as an attorney is a big decision to make, and it is important that attorneys understand the parameters in which they are permitted to act. Attorneys must understand the regulations made by the Mental Capacity Act 2005 and the Mental Capacity Act Code of Practice.
Abuse
Unfortunately, there are some cases of malicious abuse by attorneys, particularly financial abuse. BBC One Morning Live identified the following red flags to be aware of:
• Attorneys not keeping their own finances separate to that of the donor
• Attorneys becoming secretive about finances
• Making high-risk investments
• Making loan or credit card applications
• Attempting to amend the donor’s will
• Failing to pay the donor’s bills
If you have any concerns about an attorney potentially abusing their position, you should report those concerns to the OPG who will investigate accordingly.
Safeguards and reporting
It is always best to prevent financial abuse rather than react to it. Having an LPA in place is still one of the best ways to protect against abuse, as it allows you to appoint a trusted individual to manage your affairs when you are no longer able to. Additional safeguarding measures may include appointing two or more attorneys, which provides greater protection that just having a sole attorney, and making sure your chosen attorneys understand their role and responsibilities fully.
If you would like any advice on the content of this article, preparing an LPA or acting as an attorney, please contact the Private Wealth team on 01242 248488.
