When Do You Need to Seek Special Permission as an Attorney?

June 2025

If you’ve been appointed as an attorney in a power of attorney, you’ll know what a big responsibility this is.

This is likely to be especially true if you’re acting on the basis of a Lasting Power of Attorney. In these situations, it’s likely that the person you are acting on behalf of is no longer able to make their own decisions due to a condition such as dementia or Alzheimer’s disease.

If this is the case, it’s may well no longer be possible for you to speak to the person you are acting on behalf of (known legally as the donor) to ask them what they would like you to do in certain situations.

For the most part, you will be expected to make those decisions yourself, based on what you:

1. a) Believe the donor would have chosen for themselves.
2. b) Believe is in their best interest.

However, there are clear legal limits to what attorneys are empowered to do under an LPA. Because of this, in certain situations it may be necessary for you to seek special permission from the  Court of Protection.

The main areas where additional permission may be required are:

• Managing a decision that is not expressly mentioned in the LPA.
• Resolving disputes.
• Creating or amending a Will on behalf of the donor.
• Making decisions about life-sustaining treatments (again, if this is not expressly authorised in the LPA).

Making a large gift on behalf of the donor.

If you need to make a decision that is outside the scope of the powers you have been granted

Attorneys are bound by the powers they have been granted in the power of attorney document that appointed them. These powers are often quite wide, but they are by no means unlimited.

If you are acting on behalf of a donor and come up against an issue that you do not have the right to deal with, it will be necessary for you to apply to the Office of the Public Guardian to ask them to make a one off decision on the correct course of action.

You might need to do this because you are acting on the authority of a health and care LPA and the decision relates to the donor’s finances, or vice versa. Even if you have both types of LPA in place, there will be certain areas where you will need to seek additional permissions. This might be because the power of attorney specifically orders this, or it might be simply because the issue is not explicitly covered by the document.

For example, attorneys may need to seek special permission in order to sell a property on behalf of the donor, to appoint a second trustee in order to sell a jointly-owned property, or to stop someone from being able to visit the donor in a care home.

If there is a disagreement between attorneys

Not everyone will always agree with the actions of an attorney. If there is a disagreement of this kind – whether between multiple attorneys or between an attorney and someone else who is close to the donor – the first course of action should always be for the individuals involved to try and resolve any issues civilly between themselves.

Of course, this won’t always be possible. In some situations, it will be necessary to seek outside support. The attorney(s) can get in touch with the Court of Protection to ask that they make a ruling on how the contentious issue should be handled.

Alternatively, someone else who is close to the donor can contact the Court of Protection themselves if they believe that an attorney is not acting in the best interest of the donor.

If you believe it is necessary to make a change to the donor’s Will

Attorneys do not have the right to make changes to the donor’s legal documents, such as their Will. However, if there is a clear reason why a change is needed, it is possible for attorneys to apply to the Court of Protection to request that a statutory Will is put in place on behalf of the donor.

Attorneys are also unable to approve any changes to powers of attorney or other legal documents. If they believe a change of this kind is necessary, they will need to make an application to the Court of Protection.

If you wish to make a gift

Depending on the terms of the LPA, some attorneys will be authorised to make small, reasonable gifts on behalf of the donor, so long as these are considered to be in the donor’s best interest. However, making anything beyond these small gifts will generally require permission from the Court of Protection.

Attorneys will need to seek permission if they wish to:

• Gift property on behalf of the donor.
• Make a gift that is larger than what the donor would customarily have done themselves.
• Make a gift large enough to have a significant financial impact on the donor.
• Create a trust on behalf of the donor.
• Invest the donor’s money in the attorney’s business.
• Sell the donor’s property at below market value (e.g. to a family member).
• Make a gift in a situation that could be considered a conflict of interest.
• Use the donor’s money to maintain anyone other than the donor.
• Loan the donor’s money to someone else.

Attorneys will need to apply to the Court of Protection to make a gift of any size if this power is not granted to them under the LPA.

If a decision needs to be made about life-sustaining treatment

Whether or not an attorney will have the authority to make decisions about consenting to or refusing life-sustaining treatment will depend on the terms of the LPA they were appointed under.

If an attorney has been appointed under a finance and property LPA, they will not have the power to make any decisions about health or care, including life-sustaining treatment. In these situations, they will need to apply to the Court of Protection for permission to proceed.

Attorneys who have been appointed under a health and care LPA may have the authority to make decisions about life-sustaining treatment, but only if this is explicitly stated in the LPA. Even if they have been granted this power, they will not be able to contradict anything a donor has legally recorded in an Advance Decision. If an attorney believes a different decision should be made, they will need to apply to the Court of Protection.

Where can you get support with this?

 It isn’t always easy to make decisions on behalf of someone close to you. Even when you have the very best intentions, sometimes the role of attorney can be overwhelming. This is especially true for family members who have not done anything like taking on the role of attorney before, and who do not have any legal experience themselves.

There is support available for those who feel they would benefit from it. Specialist solicitors like the team here at Roche Legal frequently provide support for attorneys. Not only are we available to help ensure that all the legal requirements of the role are being met – including documentation and paperwork – we are also able to offer personalised advice on ensuring everything you are doing is in the legal best interest of the donor (the person who has made the power of attorney).

We are also able to offer valuable support in determining which type of decisions are within the scope of the power of attorney you are acting on the authority of, and which will require special permission from the Court of Protection before you can proceed.