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Can an Attorney Be Paid for Their Role? LPA Payment Rules Explained

· 25 min

Note: The following scenario is fictional and used for illustration.

When David's mother developed dementia, he stepped up as her attorney under a lasting power of attorney she'd created five years earlier. Within months, he was spending 15-20 hours per week managing her finances, coordinating care, attending medical appointments, and handling her property. As a self-employed consultant, every hour he spent on his mother's affairs was an hour he couldn't bill to clients.

After six months, David had lost approximately £12,000 in income. His sister, who lived abroad and contributed nothing, questioned why he'd spent £400 on an accountant to prepare their mother's tax return. David wondered: was he entitled to any payment for his time? Could he at least claim his travel expenses?

David's situation isn't unusual. In 2023, 1,161,958 LPAs were registered, up 37% from the previous year. In July-September 2024 alone, 411,880 LPAs were registered—a 36% increase compared to the same quarter in 2023. Most attorneys are unpaid family members, yet managing someone's affairs can require 10-20+ hours per week.

This article explains exactly when attorneys can be paid for their role, what expenses you can claim, how to include payment provisions in an LPA, and what happens if you get it wrong.

Table of Contents

The Default Rule: Attorneys Are Unpaid Volunteers

Under the Mental Capacity Act 2005, attorneys acting under a lasting power of attorney are unpaid volunteers by default. Unless the LPA explicitly includes a payment clause, you cannot charge for the time you spend managing the donor's affairs.

This fundamental rule applies to everyone. It doesn't matter whether you're a family member, friend, or professional like a solicitor—without express authority written into the LPA document, no one can be paid for their time.

The reason is simple: attorneys are fiduciaries. You must put the donor's interests ahead of your own and cannot profit from your position. This prevents conflicts of interest and protects vulnerable people from exploitation.

Emma acted as attorney for her father for eight years, managing his property, investments, and care arrangements without ever receiving payment. This is the norm. According to the Office of the Public Guardian, most attorneys who are friends or family aren't paid.

When James assumed his LPA appointment included payment for the 15 hours per week he spent managing his mother's affairs, his siblings complained to the OPG. The investigation found no payment clause in the LPA, and James had to repay £8,000 he'd taken over 10 months. The family conflict that followed damaged relationships permanently.

There's an important distinction: payment means compensation for your time, while reimbursement covers out-of-pocket expenses. You cannot charge for time without express authority, but you can always claim reasonable expenses.

What Expenses Can Attorneys Claim?

While you cannot be paid for your time without express authority, all attorneys can claim reasonable out-of-pocket expenses directly related to their duties. The OPG's LP14 guidance states that expenses must be proportionate to the size of the donor's estate and the duties you undertake.

Legitimate expenses include:

  • Postage and courier costs for sending documents
  • Travel expenses (petrol, parking, public transport) for journeys related to attorney duties
  • Professional fees for accountants, solicitors, or financial advisers you employ to help manage the donor's affairs
  • Costs of managing property (valuations, repairs, maintenance)
  • Phone calls and administrative costs directly related to your duties

Sarah claims £30 per month for petrol—she makes a 40-mile round trip weekly to manage her mother's property, check on her care, and handle correspondence. Over six months, she claimed £180. This is proportionate and reasonable.

Michael paid an accountant £350 to prepare his father's self-assessment tax return. His father has rental income from two properties and a substantial investment portfolio. Employing a professional for complex tax work is entirely appropriate and claimable.

What would trigger an OPG investigation? Rachel claimed £800 per month for "general attorney duties" without any receipts or detailed breakdown. When questioned, she couldn't explain what the money covered. This level of expense, without documentation, would be considered unreasonable.

Tom tried to charge £50 per hour for attending care home meetings and managing his mother's finances. Time spent is not an allowable expense. Unless the LPA expressly permits payment for time, you cannot charge an hourly rate regardless of how much work you're doing.

Keep detailed records of every expense. Save all receipts, log the date and purpose of each expense, and ensure you can justify each claim as necessary and proportionate. The OPG can investigate at any time and may require you to account for all expenses claimed.

When Can Attorneys Be Paid for Their Time?

There's one exception to the unpaid rule: if the LPA explicitly includes a payment clause, you can be paid as specified. Payment clauses must be written into the LPA document when it's created, in the "preferences and instructions" section.

You cannot add a payment clause after the LPA is registered. If payment isn't mentioned in the original LPA, the attorney will remain unpaid regardless of the workload involved.

Payment clauses must be specific. Vague statements like "my attorney can be paid if they want" may be rejected by the OPG during registration. The clause should specify:

  • The payment amount or the method for calculating the rate
  • Payment frequency (annual, quarterly, per task)
  • A minimum estate threshold—the point at which payments stop to prevent depleting the estate
  • For professional attorneys, reference to a professional organisation's standard rates

Margaret's estate is worth £2 million and generates complex tax obligations. She appointed her chartered accountant as a professional attorney with authority to charge standard professional rates. Her LPA states: "I wish my professional attorney to be paid their standard professional rates as set by the Institute of Chartered Accountants in England and Wales, up to a maximum of £5,000 per year. Fees will stop when my estate drops to £200,000."

This clause works because it's specific about the rate (standard professional rates), sets a maximum (£5,000 per year), and includes a stopping point (£200,000 estate threshold).

For non-professional family attorneys, an annual fee structure is common. Example wording: "I wish each of my attorneys to be paid a single fee of £1,000 each year for their services under this LPA, the payment to be made on 1st January each year. The fees will stop when my estate drops to £50,000."

When might payment be appropriate? If you're appointing a professional attorney to manage complex affairs, payment is usually expected. For family members, consider payment if the estate is substantial, the work will be significant, or one person will bear the entire burden while other family members contribute nothing.

Professional Attorneys: Solicitors, Accountants, and Trust Corporations

Professional attorneys—solicitors, chartered accountants, and trust corporations regulated by the Solicitors Regulation Authority—must follow the same fundamental rule as family members: they cannot charge for acting as attorney unless the LPA includes an express charging clause.

This surprises many professionals. Even if you charge £300 per hour for your normal legal or accounting work, you cannot charge a penny for acting as attorney if the LPA doesn't authorise payment.

A law firm acts as attorney for a vulnerable client with no family. The LPA includes this clause: "I authorise my attorneys to charge their standard professional rates for work undertaken, as published in their current fee schedule, up to a maximum of £5,000 per year."

Without that clause, the solicitors would be bound by the same unpaid rule as a family member, regardless of their professional status or usual charging rates.

There's an important distinction: acting as attorney is different from being instructed as a professional adviser. If you're appointed as attorney, you act under the LPA's authority. If the donor's attorney instructs you as a solicitor to provide legal advice, you can charge for that professional service—the attorney is employing you on behalf of the donor.

Professional attorneys should delegate work appropriately. According to OPG guidance, routine administrative tasks should be delegated to appropriate fee earner levels. If a partner charges £350 per hour, they shouldn't be spending that time paying utility bills—that work should be done by a paralegal or administrator.

A chartered accountant acts as professional attorney for a business owner with complex financial affairs. He charges £150 per hour for financial management, investment decisions, and tax planning—work that genuinely requires his professional expertise. Routine tasks like paying the donor's council tax and arranging home insurance are delegated to his administrative assistant at £40 per hour.

Costs must be proportionate to the estate size. If the donor has assets of £100,000, professional fees of £10,000 per year would be questioned. Professional deputies' bills can be assessed by the Court of Protection if challenged.

Maintain detailed billing records. Professional attorneys must be able to justify every hour charged, showing it was necessary work that genuinely required professional expertise. Transparency protects both you and the donor.

Can You Charge for Providing Personal Care?

This is perhaps the most sensitive question attorneys face. The short answer: generally no, family members acting as attorneys are expected to provide care as part of their personal relationship with the donor, without additional payment.

The law distinguishes between attorney duties (managing finances, making decisions) and personal care (helping with washing, meals, companionship). Courts expect family care to be given freely, as part of the natural obligations within family relationships.

Julie acts as her mother's attorney and provides 20 hours per week of personal care—helping her wash, preparing meals, managing medication, and providing companionship. She cannot retrospectively claim payment for this care without prior authorisation, even though it represents significant time and effort.

However, there are lawful ways to arrange payment for care if done properly before the donor loses capacity.

Before his father lost capacity, Robert negotiated a formal care agreement paying him £15 per hour for personal care services. This was documented in a written care contract, separate from his unpaid attorney duties under the LPA. Both his father (while he had capacity) and Robert's siblings agreed to the arrangement. This is legally sound.

The key requirements:

  • The agreement must be made before the donor loses mental capacity
  • It should be a separate written contract from the LPA
  • The donor must understand and agree to the arrangement while they have capacity
  • Care duties should be clearly distinguished from attorney duties
  • Other family members should be consulted to prevent disputes

What happens if you get it wrong? Linda used her attorney powers to pay herself £1,200 per month from her mother's account for "care services" without any prior agreement. An OPG investigation followed a complaint from Linda's brother. The investigation found Linda had breached her fiduciary duties by using her position to benefit herself. She was removed as attorney, required to repay £21,600, and a Court of Protection deputy was appointed. The case was referred to police for potential financial abuse charges.

Warning signs that payment for care is improper:

  • Retrospectively paying yourself for care already provided
  • Using your attorney powers to set your own care fees
  • No clear distinction between attorney duties and care services
  • Payments that significantly deplete the donor's estate
  • No consultation with other family members
  • No written agreement made before capacity was lost

If you want to be paid for care services, you must arrange this properly while the donor still has capacity, with a separate care contract that's independent of your attorney role.

Court-Appointed Deputies: Different Rules Apply

If someone loses mental capacity without having created a lasting power of attorney, the Court of Protection can appoint a deputy to make decisions on their behalf. Deputies have different payment rules than LPA attorneys.

Professional deputies appointed by the Court of Protection can charge fixed costs and remuneration under court-approved rate schedules.

For property and financial affairs cases, professional deputies may charge up to £2,116 (plus VAT) for the first year and up to £1,672 (plus VAT) for subsequent years. However, where the person's net assets are below £20,300, the deputy may take an annual management fee not exceeding 4.5% of net assets.

For health and welfare cases, professional or public authority deputies may take an annual management fee not exceeding 2.5% of the person's estate up to a maximum of £703.

When elderly Bernard lost capacity without creating an LPA, the Court of Protection appointed a professional deputy. The deputy charged £2,116 in year one, then £1,672 per year ongoing. Bernard's family also pays annual supervision fees to the OPG starting at £35 for minimal supervision. This is far more expensive than creating an LPA would have been.

The Court of Protection fees add to the cost:

  • Application fee: £408 to apply to become deputy
  • Hearing fee: £259 if a court hearing is required
  • Annual supervision fee: £35 to £800+ depending on the supervision level required
  • Professional deputy costs: the regulated fee schedules described above

Creating an LPA costs £92 to register (as of November 2025). If you want both a property and financial affairs LPA and a health and welfare LPA, the total is £184. This is a one-time cost.

Compare that to deputyship: £408 application fee, potential £259 hearing fee, £1,672+ annual deputy fees, and ongoing supervision fees. Over five years, deputyship can cost £8,000-£10,000 or more.

The lesson is clear: creating an LPA gives you control over who manages your affairs and at what cost. If you don't create an LPA and lose capacity, the court decides who is appointed and you'll pay much higher regulated fees with no choice in the matter.

How to Add a Payment Clause to Your LPA

If you're creating an LPA and want to include a payment clause, it must go in Section 7 of the LPA form—the "preferences and instructions" section. Payment clauses must be instructions (binding on the attorney) rather than preferences (advisory).

For professional attorneys like solicitors or accountants, typical wording is:

"I wish my professional attorneys to be paid their standard professional rates as set by the Law Society of England and Wales, up to a maximum of £5,000 per year. Fees will stop being paid when my estate drops to £100,000."

This clause specifies the rate calculation method (standard professional rates), sets a maximum (£5,000 per year), and includes a stopping point (£100,000 estate threshold).

For non-professional family attorneys who you want to pay an annual fee, consider this wording:

"I wish each of my attorneys to be paid a single fee of £1,000 each year for their services under this LPA, the payment to be made on 1st January each year. The fees will stop when my estate drops to £50,000."

This specifies the exact amount (£1,000), payment frequency (annually on 1st January), and estate threshold (£50,000).

If you want to authorise reasonable expenses beyond the default rule, you could include:

"I authorise my attorneys to claim reasonable expenses including travel, postage, and professional fees (accountant, solicitor, financial adviser) necessary to manage my affairs, up to £2,000 per year without needing to obtain approval from other family members."

This clarifies expense limits and removes potential family disputes about what's reasonable.

Common mistakes to avoid:

  • Too vague: "My attorney can be paid if they want." The OPG may reject this—you need specific terms.
  • Unlimited: "Pay my attorney whatever they think is fair." This creates an obvious conflict of interest.
  • No stopping point: Failing to set a minimum estate threshold risks depleting the estate entirely in fees.
  • Confusing expenses with payment: Be clear whether you're authorising payment for time (requires express clause) or just clarifying expense limits (attorneys can always claim reasonable expenses).

When should you include a payment clause? Consider it if:

  • You're appointing a professional attorney (usually expected)
  • A family attorney will be making significant sacrifices, such as reducing work hours
  • Your estate is complex and will require substantial time to manage
  • One person will do all the work while other family members contribute nothing, and you want to compensate them fairly

The OPG will review payment clauses during registration. If a clause is too vague, unreasonable, or unclear, they may request clarification or reject the LPA. For complex estates or professional attorneys, consider getting legal advice on appropriate payment clause wording.

What Happens If You Get It Wrong?

The Office of the Public Guardian has investigatory powers under the Mental Capacity Act 2005 to investigate attorneys suspected of misconduct. Claiming unauthorised payment or unreasonable expenses can lead to serious consequences.

Attorneys have a legal duty not to benefit from their position. This is a core fiduciary obligation. Using your attorney powers to pay yourself without express authority is a breach of that duty.

What triggers an OPG investigation? Complaints from family members, suspicious financial activity in the donor's accounts, safeguarding concerns raised by care providers, or routine reviews that reveal unusual transactions.

Paul claimed £600 for "general expenses" over three months without realising he needed to keep receipts and detailed records. When the OPG contacted him following a complaint from his sister, Paul immediately repaid the money and implemented proper record-keeping with receipts and an expense log. Because Paul acted quickly, cooperated fully, and the amount was relatively small, no further action was taken beyond a warning letter.

Karen's case was far more serious. She paid herself £2,000 per month from her father's account for 18 months, claiming it was for "care and management." Her father's LPA contained no payment clause. An OPG investigation found Karen had taken £36,000 without authority. She was removed as attorney, required to repay the full £36,000, and the Court of Protection appointed a professional deputy. The case was referred to police for investigation of potential financial abuse under the Fraud Act 2006.

Two siblings were appointed as joint attorneys for their mother. One sibling, acting alone, paid himself £1,500 per month for providing care. The other sibling complained to the OPG. The investigation found no payment clause in the LPA, and because they were joint attorneys, neither could act without the other's agreement. Both attorneys were removed for failing to act jointly, and the £18,000 taken had to be repaid.

Warning signs the OPG looks for:

  • Unexplained withdrawals or transfers to the attorney
  • The donor's estate depleting rapidly while the attorney's lifestyle improves
  • Lack of financial records or receipts for claimed expenses
  • Attorney refusing to provide information to other family members or the OPG
  • The donor's care deteriorating while money is being spent elsewhere
  • Conflicts of interest not properly managed or disclosed

If you suspect an attorney is claiming unauthorised payment or excessive expenses, you can report concerns to the OPG. Contact them on 0300 456 0300 or use the online reporting form. You'll need to provide evidence: financial records, specific allegations with dates and amounts, and a timeline of events.

Potential penalties for unauthorised payment:

  • Civil consequences: Removal as attorney, court orders to repay unauthorised funds, costs orders requiring you to pay legal fees
  • Criminal consequences: In serious cases, charges of fraud, theft, or financial abuse under the Fraud Act 2006, with potential sentences of up to 14 years imprisonment

The message is clear: if the LPA doesn't expressly authorise payment, don't take it. If you're unsure whether an expense is reasonable, keep detailed records and err on the side of caution. The financial and legal consequences of getting it wrong are severe.

Record-Keeping Requirements for Attorneys Claiming Expenses

Under the Mental Capacity Act 2005 and OPG guidance, attorneys must keep accurate records of all decisions and financial transactions. This includes detailed records of every expense claimed.

What records should you keep?

  • All receipts for expenses claimed
  • A detailed expense log showing date, amount, purpose, and receipt reference for each expense
  • Bank statements showing all transactions in the donor's accounts
  • Logs of important decisions you make as attorney, with reasons
  • Correspondence with other attorneys, family members, and professionals
  • Records of income received on the donor's behalf
  • Documentation of bills paid from the donor's funds
  • Investment records if you make or sell investments
  • Records of gifts given on the donor's behalf (if authorised by the LPA)

Eleanor maintains a spreadsheet logging every expense claimed: date, amount, purpose, and receipt reference. She keeps all receipts in labeled folders organised by year. She sends quarterly summaries to her siblings who are also appointed as joint attorneys. When the OPG conducted a routine check following a change in Eleanor's mother's care arrangements, Eleanor provided comprehensive records within 24 hours. The OPG commended her record-keeping and closed the review with no concerns.

Martin claimed expenses but kept no receipts, mixed the donor's cash with his own, and had no record of what money was spent on. When the OPG investigated following a complaint, Martin couldn't justify £8,000 in withdrawals from his father's account over 14 months. Even though Martin insisted the money was for legitimate expenses, without receipts or records he couldn't prove it. He was forced to repay the full £8,000 from his personal funds.

How long should you keep records? Keep all records for the duration of your attorney role, plus at least six years after. If there are any disputes or investigations, you may need records going back many years. Digital records are acceptable as long as they're accessible and can be provided to the OPG if requested.

Best practices:

  • Keep the donor's finances completely separate from your own—never mix them
  • Use the donor's dedicated bank account for all their transactions
  • Reconcile the donor's accounts monthly
  • If managing complex estates, prepare annual accounts showing income, expenditure, and asset values
  • Share information with other attorneys or family members to maintain transparency
  • Respond promptly to any OPG requests for information or documentation

Red flags to avoid:

  • Cash withdrawals without receipts or explanation
  • Round number expenses that suggest estimation rather than actual costs (£100, £500)
  • Expenses that exceed the donor's income, depleting capital
  • Reconstructing records from memory months or years after the expenses were incurred

If you're claiming expenses, treat it as seriously as you would manage your own business accounts. The OPG can request records at any time, and attorneys who cannot provide adequate documentation face investigation, removal, and potential repayment requirements.

Frequently Asked Questions

Q: Can a family member acting as an attorney be paid for their role?

A: No, not unless the LPA explicitly states this. Family members and friends acting as attorneys are generally unpaid volunteers, though they can claim reasonable out-of-pocket expenses like travel, postage, and accountant fees. If the donor wants to pay a family attorney beyond expenses, this must be included as an instruction in the LPA document when it's created.

Q: What expenses can an LPA attorney claim?

A: Attorneys can claim reasonable out-of-pocket expenses directly related to their duties, including postage, travel costs, accountant fees for preparing tax returns, and professional adviser fees. All expenses must be proportionate to the donor's estate size and the attorney's duties, and detailed records with receipts must be kept.

Q: Can professional attorneys like solicitors charge fees for acting under an LPA?

A: Yes, but only if the LPA includes an express charging clause authorising payment. Without this clause, even professional attorneys cannot charge for their time. The charging clause should specify the payment method, such as standard solicitor rates or an hourly rate set by a professional organisation.

Q: How do you add a payment clause to an LPA?

A: Payment clauses must be included in the 'preferences and instructions' section of the LPA form when it's created. For professionals, typical wording is: "I wish my professional attorneys to be paid the standard solicitor rate as set by [organisation name]." For non-professionals, specify an annual amount and minimum estate threshold.

Q: Can an attorney charge for providing personal care to the donor?

A: Generally no. Family members acting as attorneys are expected to provide care as part of their personal relationship with the donor, without additional payment. If the attorney wants to charge for care services, this must be explicitly authorised in the LPA or agreed separately with the donor before they lose capacity.

Q: What happens if an attorney claims unreasonable expenses?

A: The Office of the Public Guardian can investigate attorneys who claim unreasonable expenses. Attorneys have a legal duty not to use their position to benefit themselves. If expenses are found to be excessive or inappropriate, the OPG can take action including removal of the attorney, court proceedings, or orders to repay money.

Q: Do professional deputies appointed by the Court of Protection get paid?

A: Yes, professional deputies appointed by the Court of Protection can charge fixed costs and remuneration under court-approved rates. Health and welfare deputies can take an annual management fee up to 2.5% of the person's estate (maximum £703). Property and affairs deputies follow regulated fee schedules based on estate size and work undertaken.

Conclusion

Key takeaways:

  • Attorneys are unpaid volunteers by default—unless your LPA expressly authorises payment, you cannot charge for your time, only claim reasonable documented expenses
  • Include payment clauses when creating the LPA—if you want to pay your attorney (professional or family member), you must include specific instructions in the LPA when it's created, as you cannot add this later
  • Keep meticulous records—every expense you claim must be supported by receipts and justified as proportionate to the donor's estate and your duties
  • Professional attorneys need express authority—even solicitors and accountants cannot charge for acting as attorney without a charging clause in the LPA
  • OPG has enforcement powers—claiming unauthorised payment or excessive expenses can lead to removal as attorney, repayment requirements, and in serious cases, criminal charges

Acting as an attorney is one of the most important responsibilities you can undertake for someone you care about. While most attorneys serve without payment as an act of love and duty, understanding the rules around expenses and authorised fees ensures you can fulfil your role without financial hardship or legal complications. Whether you're creating an LPA and considering payment provisions, or already serving as an attorney and wondering what you can claim, clarity on these rules protects both you and the person who trusted you with this vital role.

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Legal Disclaimer:

This article provides general information only and does not constitute legal or financial advice. WUHLD is not a law firm and does not provide legal advice. Laws and guidance change and their application depends on your circumstances. For advice about your situation, consult a qualified solicitor or regulated professional. Unless stated otherwise, information relates to England and Wales.

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