LPA Instructions and Preferences UK (2026): Mandatory Instructions vs Non-Binding Preferences in a Lasting Power of Attorney

Both a Property & Financial Affairs LPA and a Health & Welfare LPA allow the donor (the person making the LPA) to give additional guidance to attorneys beyond the default legal framework. This guidance falls into two categories with fundamentally different legal effects: (1) INSTRUCTIONS, LEGALLY BINDING: instructions are mandatory directions that the attorneys MUST follow. They are legally enforceable constraints on the attorney's powers. An attorney who acts contrary to an instruction is acting outside their authority and may be liable for the consequences. Instructions are recorded in Section 7 of the Property & Financial Affairs LPA form and Section 6 of the Health & Welfare LPA form. The Office of the Public Guardian (OPG) reviews instructions on registration, instructions that are legally invalid will be severed (removed) by the OPG (with the donor's agreement if they have capacity) or by the Court of Protection if the donor lacks capacity. Examples of valid instructions: 'You must not make any gifts or loans of more than £500 to any person.' 'You must not sell my main residence at [address] without the written consent of my daughter [name].' 'All cheques over £1,000 must be signed by both attorneys jointly.' 'You must not move me into a residential care home without a formal capacity assessment confirming I lack capacity to decide where I live'; (2) PREFERENCES AND GUIDANCE, NOT LEGALLY BINDING: preferences are statements of the donor's wishes, values, and guidance that the attorneys should take into account but are not legally required to follow. Attorneys must consider preferences and act in the donor's best interests (MCA 2005 s.4), ignoring preferences without good reason could be evidence of failing to act in best interests, but it is not an automatic breach of the LPA. Preferences are recorded in the same sections of the LPA form. Examples of preferences: 'I would prefer my home not to be sold while my spouse is living.' 'I prefer to deal with [name bank] for all financial matters.' 'I would like my investments to be held in ethical/ESG funds where possible.' 'I would prefer to be cared for at home rather than in a care home for as long as this is safe'; (3) WHY THE DISTINCTION MATTERS: using instructions when preferences are appropriate makes the LPA unnecessarily rigid and could prevent attorneys from acting in a genuine emergency. Using preferences when the donor really means to impose a binding constraint means the attorney could legally disregard them. Solicitors drafting LPAs should discuss with the donor whether each direction should be mandatory or advisory.

The range of valid instructions in a Property & Financial Affairs LPA is broad, but there are limits, instructions that are too restrictive or legally impossible will be severed by the OPG: (1) VALID INSTRUCTIONS, RESTRICTIONS ON POWERS: (a) 'You must not make any gifts of any amount on my behalf.' This restricts the attorney's limited gifting power under MCA 2005 s.12 (attorneys can make 'customary' gifts on occasions like birthdays/Christmas, this instruction removes that power entirely); (b) 'You must not invest in any equity investments. All funds must be held in deposit accounts or cash ISAs.' This restricts the attorney's investment powers under Trustee Act 2000 (which applies to attorneys under MCA 2005 s.8), attorneys must follow this instruction; (c) 'You must not sell my buy-to-let properties at [address] without first obtaining three independent valuations.' Procedural restriction on how a sale may be effected; (d) 'Both my named attorneys must agree in writing to any transaction over £5,000, even if one attorney is unable to act.' This modifies the default joint and several authority; (e) 'You must use [name firm] as solicitors for all property conveyancing matters.' Restricts professional choice for property transactions; (2) INSTRUCTIONS THAT ARE PROBLEMATIC OR MAY BE SEVERED: (a) 'You must never sell my house.' This is likely to be severed as it prevents the attorney from acting in the donor's best interests if care fees make a sale necessary, it creates an impossible position; (b) 'You must always make decisions jointly.' This conflicts with a 'joint and several' appointment and would be re-read as creating a joint (not joint and several) appointment, with major consequences if one attorney dies or loses capacity; (c) 'You must not make any payments to my son [name].' This imposes a restriction on the attorney's dealing with a specific beneficiary, potentially valid if specific, but complex; (d) 'You must consult my GP before any financial decision.' Impractical, medical professionals are not obliged to advise on financial decisions; (3) OPG REVIEW AND SEVERANCE: the OPG reviews the completed LPA form before registration. If an instruction is invalid, the OPG contacts the donor (if they have capacity) to sever (remove) it and proceed with registration of the remainder. If the donor lacks capacity to consent to severance, the OPG applies to the Court of Protection to sever the invalid provision; (4) EFFECT OF AN INSTRUCTION ON ATTORNEYS: once registered, an attorney who acts contrary to a valid instruction is acting beyond their authority. The OPG can investigate and the Court of Protection can revoke the LPA or remove the attorney. The donor (if they have capacity) can also revoke the LPA and make a new one.

The Health & Welfare LPA governs decisions about the donor's personal welfare, including medical treatment, where they live, and day-to-day care decisions. Instructions in a Health & Welfare LPA carry the same binding effect as in a Property & Financial Affairs LPA: (1) LIFE-SUSTAINING TREATMENT, THE SPECIAL BOX: the Health & Welfare LPA form includes a specific section for the donor to decide whether their attorney has authority to consent to, or refuse, life-sustaining treatment. This is separate from the instructions section and is a fundamental choice: (a) If the donor ticks 'I GIVE my attorney(s) authority to give or refuse consent to life-sustaining treatment on my behalf', the attorney can make decisions about whether to withhold or withdraw life-sustaining treatment (ventilation; artificial nutrition; CPR; etc.); (b) If the donor ticks 'I DO NOT give my attorney(s) authority to give or refuse consent to life-sustaining treatment on my behalf', the attorney has no authority over life-sustaining treatment decisions; these remain with the medical team under MCA 2005 s.4 best interests; (c) DEFAULT: if neither box is ticked, the OPG will require clarification before registration. Most donors grant authority over life-sustaining treatment to the attorney, having carefully chosen someone they trust; (2) VALID HEALTH AND WELFARE INSTRUCTIONS: (a) 'You must not consent to me moving into a residential care home unless I have been assessed as lacking capacity specifically to decide where I live and the assessment has been documented.' Specific capacity-related condition; (b) 'You must not consent to any medical procedure unless you have obtained a second medical opinion from a consultant in the relevant specialty.' Procedural safeguard; (c) 'You must not consent to any psychiatric treatment including antipsychotic medication without the written opinion of a consultant psychiatrist.' Medication restriction; (d) 'If I am placed in a care home, you must ensure it is a home that accepts pets and allows my dog to stay with me.' Lifestyle specific; (3) ADVANCE DECISIONS AND LPAs: an Advance Decision to Refuse Treatment (ADRT, MCA 2005 ss.24-26) operates alongside (not instead of) the Health & Welfare LPA. Key interaction: if the ADRT is made after the LPA, the ADRT prevails for the specific treatments it covers. If the LPA grants authority over life-sustaining treatment and is made after the ADRT, the LPA prevails (unless the ADRT is made after the LPA with the specific intention of overriding it). Both documents should be reviewed and updated together; (4) PREFERENCES IN HEALTH AND WELFARE LPAs: 'I prefer to receive end-of-life care at home rather than in a hospital.' 'I would like my religious beliefs (I am a practising Catholic) to be considered in all medical decisions.' 'I prefer not to receive blood transfusions, but I understand this is a preference not an instruction and my attorney may override this in a life-threatening emergency.' (Note: a preference to refuse blood transfusions would need to be an ADRT, not just an LPA preference, to be legally binding under s.24-26).

The LPA registration process involves several checks on instructions: (1) THE CERTIFICATE PROVIDER'S ROLE: the certificate provider (either a professional, such as a solicitor or doctor, or someone who has known the donor for at least 2 years but is not a family member or attorney) must sign the LPA form to confirm that: (a) the donor understands the purpose and scope of the LPA; (b) no fraud or undue pressure has been applied; (c) there is nothing to suggest the donor lacks capacity to make the LPA. The certificate provider should also check that the instructions are coherent and not obviously invalid or legally impossible. A careful certificate provider will query instructions that seem too restrictive or that could make the attorney's role impractical; (2) NOTIFICATION AND WAITING PERIOD: once the LPA is complete, the donor (and any named persons to be notified) must be given the LPA to review and can raise a concern with the OPG. The OPG has a 4-week notification period; (3) OPG REGISTRATION REVIEW: the OPG does not provide legal advice on the validity of instructions, its review focuses on whether the form is correctly completed. However, the OPG may identify instructions that are clearly invalid (e.g. an instruction that is contrary to MCA 2005 or that creates a fundamental conflict within the document). If an instruction appears invalid, the OPG will: (a) contact the donor (if they have capacity) and explain the issue; (b) ask the donor to consent to severance (removal) of the instruction, allowing the LPA to be registered without it; (c) if the donor lacks capacity, apply to the Court of Protection for severance under s.23(1)(a) MCA 2005; (4) COST AND DELAY OF INVALID INSTRUCTIONS: identifying and addressing an invalid instruction adds weeks to the registration process (currently already 8-20 weeks). An instruction that cannot be severed (because the donor cannot consent and CoP proceedings are necessary) may add months and cost hundreds or thousands of pounds. It is far better to get the instructions right when drafting the LPA; (5) COURT OF PROTECTION SEVERANCE APPLICATIONS: under MCA 2005 s.23, the Court of Protection can: (a) determine whether a provision in an LPA instrument is valid; (b) sever invalid provisions and direct registration of the remainder. The CoP considers whether the provision is contrary to the Act or makes the LPA impractical. The donor, any named attorney, or the OPG can apply.

Once an LPA is registered by the OPG, the instructions and preferences cannot be amended, the LPA document itself cannot be changed after registration: (1) WHY REGISTERED LPAs CANNOT BE AMENDED: the LPA is a legal document that has been signed, witnessed, certified, and registered. Any amendment to the registered document would undermine the safeguards built into the process (certificate provider checks; notification period; OPG registration). Amendments after registration are therefore not permitted; (2) THE ONLY OPTIONS ARE REVOCATION AND A NEW LPA: if the donor (with capacity) wishes to change their instructions or preferences: (a) revoke the existing registered LPA (under MCA 2005 s.13(2)), by deed of revocation, signed and witnessed; (b) notify the OPG of the revocation (send the revocation deed and the original registered LPA to the OPG); (c) make a new LPA with the updated instructions; (d) register the new LPA (current fee £82; registration typically 8-20 weeks); (3) PRACTICAL IMPLICATION: if you are planning to give instructions in an LPA, it is essential to get them right at the outset. Overly restrictive instructions that later become impractical cannot be removed without revoking the LPA and making a new one, during which period there may be no valid LPA in force if the revocation is registered before the new one. In practice, advisers often recommend keeping instructions relatively few and clear, and using preferences for more detailed guidance; (4) WHILE THE DONOR HAS CAPACITY: the LPA only takes full effect when the donor lacks capacity (for a Health & Welfare LPA) or when the donor has registered it and chooses to activate it (Property & Financial Affairs LPA). While the donor retains capacity, they can revoke and remake the LPA as many times as they wish. It is good practice to review LPA instructions every 5 years or after a major life change; (5) DONOR WHO HAS LOST CAPACITY: if the donor lacks capacity to revoke and remake the LPA, they are stuck with the registered LPA as it stands (including any overly restrictive or impractical instructions). This underscores the importance of getting the LPA right while the donor has full capacity.