When Trust is Broken: Attorneys Misusing Funds Under a Lasting Power of Attorney

A Lasting Power of Attorney (LPA) is a document that appoints an Attorney to act on behalf of a person (a Donor) in respect of either property and financial affairs or health and welfare decisions.  

An LPA can be used when the Donor loses capacity to make decisions for themselves or before capacity is lost, but those decisions must be made with the consent of the Donor.  

Attorneys have a variety of duties which are set out in the Mental Capacity Act 2005 and its accompanying Code of Practice. In essence, Attorneys must act in the best interests of the Donor, having regard to the Donor’s wishes, feelings, beliefs and values. An Attorney must not act in conflict of interest with the Donor and they can only reimburse themselves for reasonably incurred expenses.  

Common breaches of duty include the unauthorised use of the Donor's funds, mixing their own funds with the Donor’s funds, excessive gifting, transferring property into the Attorney's own name, failing to keep proper accounts, neglecting the Donor's financial affairs, or making decisions that disregard the Donor's best interests.  

It is very common for family members to be appointed as Attorneys and a lot of the time those family members are also set to inherit after the Donor’s death i.e. children of the Donor. In situations where an Attorney has breached their duty, this is often not discovered until after the Donor’s death when the Executor or Administrator of the Estate reviews the bank statements and considers the assets of the Donor. Where the Attorney and Executor is the same person, it is often other beneficiaries that query what happened to the Donor’s assets during their lifetime as they were expecting to inherit more.  

The recent case of MacDougall v Lloyd Philip Thomas [2026] EWHC 1142 (Ch) highlights the duties that an Attorney holds and the consequences of misuse of funds. The deceased registered an LPA in 2012, appointing her daughter (Mrs Thomas) and her son-in-law (Mr Thomas) as Attorneys. Upon the deceased’s death, Mr MacDougall, the deceased’s son, challenged the validity of the deceased’s Will alongside various transactions made by the Attorneys during the period of 2012 to 2020. There was found to be extensive use of the deceased’s bank accounts by the Attorney for their own benefit. The Attorneys were ordered to repay £1.7million to the Estate and three properties, worth around £1.6million, which were transferred to the Attorneys by the deceased as a result of the Attorney’s undue influence.  

The Judge said  "Jeanne’s accounts and her assets were simply used by Sandra and Philip as if they were their own, without any regard whatsoever for any fiduciary duties, or even familial obligations to Jeanne." The Attorneys considered the use of funds as an “an advance on their inheritance" given they were the main beneficiaries of the deceased’s Will.  

The Judge considered the Attorneys had plenty of opportunity to take advice on their role and duties, but chose not to. It was described as a “deliberate misconduct driven by greed, for which there is no excuse”.  

It is very important that an Attorney seeks advice as to their role at an early stage to understand what they can and cannot do. If you are an Attorney that is unsure on your role, or a family member that is concerned about an Attorney’s actions (pre or post death of the Donor), please contact our specialist Contentious Trusts and Probate team.

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