Lasting Power of Attorney for Health and Welfare
If illness or injury left you unable to decide for yourself, who would you trust to speak for you? A Health and Welfare LPA gives the people you choose legal authority to protect your care, treatment and wellbeing.
Why you need a Health and Welfare LPA
If a stroke, an accident or a serious illness left you unable to speak for yourself tomorrow, who would decide about your care? Would it be someone who actually knows what you’d want, or a stranger applying a legal test because nobody else had the authority to decide?
A Health and Welfare Lasting Power of Attorney lets you answer that question now, while you still can. You choose the person, or people, you trust to speak for you on medical treatment, care and daily life if you’re ever unable to decide for yourself, and you make sure the decisions made in your name are the ones you would actually have made.
What is a Health and Welfare LPA?
A Health and Welfare LPA is the legal document by which you, the donor, give authority to people you trust, your attorneys, to make specified health, care and welfare decisions if you later become unable to make those decisions for yourself.
It’s a different document from a Property and Financial Affairs LPA, which deals with money: bank accounts, bills, property and the like. A Health and Welfare LPA has nothing to do with your finances. Its whole purpose is to make sure someone you trust can make decisions about your body, your care and your daily life when you’re no longer able to make them yourself.
What decisions can my Health and Welfare attorneys make?
Once your LPA is registered and you lack the capacity to make a particular decision yourself, your attorneys can step into your shoes for that decision. Their authority covers two broad areas: your medical treatment, and your day to day care and welfare, including where and how you live.
Medical treatment
Your attorneys may:
- give or refuse consent to medical treatment on your behalf
- discuss treatment options and prognosis with doctors
- consent to examinations and assessments
- make decisions about medication and ongoing treatment
- access relevant medical information where necessary to carry out their role
Can my attorney speak to my doctors and see my medical records?
Yes, but only so far as necessary to make the decisions your LPA authorises. Your attorneys aren’t given open access to your medical history for its own sake; they can ask for and be given the information they genuinely need to make the decision in front of them.
Care and accommodation
Your attorneys can also make decisions about:
- whether you remain living at home
- receiving care at home, and what that care looks like
- moving into residential or nursing care
- which care setting suits your needs
- changing care homes if the current one isn’t right
- your wider support and social care arrangements
Can my attorneys decide whether I go into a care home?
If your LPA gives them authority over care and accommodation, yes, once you lack the capacity to make that decision yourself, and only where it’s genuinely in your best interests. They must take account of any preferences or instructions you’ve left them about where and how you want to live.
Preserving what you enjoy in life
A Health and Welfare LPA isn’t only about dramatic end of life medical decisions. Done properly, it protects the ordinary things that make up your life. With the right guidance, your attorneys can make decisions about your diet, your clothes, your daily routine, your hobbies, your personal appearance, your social activities, and even what happens to your pets. It’s as much about preserving who you are as it is about medical treatment.
When can a Health and Welfare LPA be used?
Your attorneys cannot start making decisions the moment the LPA is registered. They can only make a particular decision for you once you lack the mental capacity to make that particular decision for yourself.
Does making a Health and Welfare LPA mean giving up control of my own life?
No, not at all. For as long as you can make a decision yourself, you make it. Your attorney cannot override you simply because they disagree with you, think they know better, consider your choice unwise, or would have chosen differently themselves. Until it has been properly established that you lack capacity for a particular decision, that decision remains yours.
What does “losing mental capacity” actually mean?
Under the Mental Capacity Act 2005, a person may lack capacity to make a particular decision if they can’t do one or more of the following:
- understand the relevant information
- retain it for long enough to make the decision
- use or weigh that information as part of the decision-making process
- communicate their decision, by any means
Capacity is decision-specific and time-specific
This is one of the most important, and most misunderstood, parts of the law. Someone can be perfectly capable of deciding what they’d like for lunch while genuinely unable to understand a complicated decision about surgery. Capacity isn’t an on/off switch that applies to a person generally; it’s assessed decision by decision.
It’s also not necessarily permanent. Delirium, infection, medication, an operation, or a temporary illness can all take away someone’s capacity for a period, after which it returns. A person recovering from a serious infection, for example, may lack capacity to make decisions while acutely unwell and regain it fully within days. An inability to make one decision today doesn’t mean an inability to make every decision, and it doesn’t mean that capacity, once lost, is lost for good. Attorneys are required to keep checking, not to assume.
Why make a Health and Welfare LPA if I’m fit and healthy?
Many people assume that because an LPA is only used once they become too unwell to manage their own affairs, that’s also when they should apply for one. It’s exactly the wrong way round, and getting it wrong can leave you with no say at all over decisions that matter to you.
A Health and Welfare LPA has to be signed and witnessed, and ideally registered, while you still have the capacity to make one. You cannot wait until the need actually arises. If capacity is lost before an LPA has been made, it becomes legally impossible to create one. At that point, decisions about your medical treatment fall to doctors applying the best interests test, and their conclusion about what’s in your best interests may not match what you’d actually have chosen. It might be decided, for instance, that you’d be better off in a care home, while your own preference to stay in your own home for as long as possible is never even considered, because nobody had the legal authority to insist on it.
Loved ones can apply to the Court of Protection for a deputyship instead, but this is a slow and expensive process, and the court doesn’t grant personal welfare deputyships routinely.
It’s also worth remembering that dementia isn’t the only reason you might need this document. A serious accident, a stroke, a brain injury or a sudden serious illness can happen to anyone, at any age, without warning. A Health and Welfare LPA isn’t a document only for elderly people planning ahead for old age. It’s relevant to every adult.
If your LPA has already been properly signed and witnessed, your attorneys can apply to register it as soon as it’s needed, though there will typically be a delay of two to three months while the process is completed. Register it now, before you need it, and your chosen attorneys can start acting for you the moment they’re needed, with no delay at all.
If you’ve been putting this off because you feel too young or too well to need it, that’s exactly the thinking worth challenging. Talk to Wise Owl Wills about getting it in place while there’s no urgency at all, which is precisely the best time to do it.
Who should I choose as my Health and Welfare attorney?
You can appoint one person or several. When choosing, look for people who:
- understand your wishes and values
- can make difficult decisions under pressure
- will advocate for you confidently with doctors and care providers
- can separate their own preferences from yours
- can cope emotionally if a genuinely difficult medical decision has to be made
- communicate well with the rest of the family
- share, or at least respect, your beliefs and values
- are likely to be able to continue acting for as long as necessary
Should the person closest to me necessarily be my attorney?
Not automatically. The person you love most isn’t always the person best equipped to challenge medical professionals, resolve a family disagreement, or make an emotionally difficult decision calmly. Choose the person, or people, who meet as many of the criteria above as possible, even if that means looking beyond the obvious choice.
How many attorneys should I appoint?
There’s no legal limit on the number of attorneys you can appoint, but there are practical limits worth respecting. An LPA can become unworkable if too many people have to meet and agree before every decision.
If you appoint only one attorney, it’s sensible to name a replacement in case a time comes when your original attorney genuinely can’t act any more. Without a replacement, the LPA becomes meaningless the moment that attorney is no longer available. Appointing more than one attorney can provide continuity and allow several trusted people to share the responsibility, but don’t appoint extra attorneys simply to avoid upsetting family members who weren’t chosen. Choose people you trust who can genuinely work together.
Should my attorneys act independently or together?
This comes down to a choice between acting jointly and acting jointly and severally, and you can mix the two, allowing attorneys to act independently for some decisions while requiring them to act together on others.
Joint and several appointment is the most flexible arrangement and the one most people choose. Attorneys appointed this way can still discuss important decisions together; they’re simply not legally required to reach every decision jointly.
Joint appointment means every attorney must agree to every decision. It isn’t a majority vote. This works well when attorneys are naturally in agreement, but it becomes a problem if they disagree, because the decision then can’t be made under the LPA until that disagreement is resolved. It can also become unworkable if one joint attorney dies or becomes unable to act, since a decision that legally requires all of them can no longer be made at all. The more restrictive your arrangement, the more important it is to think carefully about replacement attorneys and what should happen if one of the original attorneys can no longer act.
Getting this structure right, rather than defaulting to whatever sounds simplest, is exactly the kind of thing worth talking through properly. Book a guided appointment with Wise Owl Wills and we’ll help you work out which arrangement actually suits your family.
Should my attorneys or my doctors decide about life-sustaining treatment?
When you apply for a Health and Welfare LPA, you must decide whether your attorneys have authority over life-sustaining treatment, or whether that decision stays with your doctors. This isn’t a box to tick without thinking about it; it’s one of the most significant choices in the whole application, and it deserves real consideration rather than a default answer.
What is life-sustaining treatment?
Life-sustaining treatment doesn’t just mean the dramatic scenarios: consenting to emergency surgery, or deciding whether to switch off a life support machine. It can be something as ordinary as consenting to a course of antibiotics for pneumonia in someone who is already frail, where treating the infection will keep them alive but won’t reverse the underlying decline. It can mean a decision about a feeding tube, about resuscitation, or about whether to continue dialysis. Some of these decisions are dramatic and immediate; others are quiet, gradual, and easy to overlook until you’re the one facing them.
Choosing who should make this decision
If the decision is left to your doctors, they’ll act under the best interests framework required by the Mental Capacity Act. That’s a genuine legal safeguard, but a doctor’s clinical view of your best interests won’t always match the decision you’d have made for yourself, because a doctor generally won’t know your personal values, your fears, or what quality of life means to you.
Giving this authority to your attorneys instead means the decision rests with someone who knows you and who can weigh your history, wishes and beliefs alongside the medical facts. The trade off is that it’s an emotionally heavy responsibility, and not everyone is well suited to carrying it.
The most sensible approach is to talk this through with your prospective attorneys before you make your LPA, and decide together, honestly, whether they’re the right people to hold this particular authority. We’re happy to talk it through with you and your attorneys as part of your appointment; get in touch when you’re ready.
Can I say how I want to be cared for?
Yes, and this is one of the most valuable parts of the whole document. Your LPA lets you record preferences, things you’d like your attorneys to take into account, and instructions, things your attorneys must do or must not do. This is your opportunity to set out how you want your quality of life maintained, in your own words.
Your Preferences
You might express preferences about:
- where you’d prefer to live
- remaining at home for as long as practicable
- your diet
- religious observance
- your personal appearance
- the social activities you want to keep up
- what happens to your pets
- your care routines
- your medical preferences
- end of life care
- relationships that matter to you
Your instructions
You can also give binding instructions, for example:
- not to agree to a move into residential care unless, say, a doctor considers you can no longer live safely or independently at home
- not to consent to specified forms of medical treatment, provided the instruction is lawful and clear, such as refusing treatment involving blood products
- to consult a named person or professional before a particular type of welfare decision is made
- to act jointly on specified major decisions, even where attorneys are otherwise appointed jointly and severally, such as a permanent move into a care home
- to follow particular requirements about where you live, provided those requirements are precise enough to actually be followed
A word of caution
A poorly drafted or contradictory instructions can make an LPA difficult, or even impossible, to operate, and can cause real problems at the registration stage. This is an area where it genuinely pays to get proper guidance rather than guess at the wording yourself. It’s exactly the sort of detail we work through with you at your appointment, so your preferences and instructions actually hold up rather than causing problems later. Speak to Wise Owl Wills before you commit anything to paper.
If somebody someday has to make a decision for you, how will they know what you would have wanted?
Your Health and Welfare LPA is how you make sure your existing lifestyle, values and wishes carry forward into decisions made on your behalf, rather than being guessed at by people who don’t know you.
Health and Welfare LPA versus Living Will
A Health and Welfare LPA appoints people to make future decisions about your health and welfare on your behalf. An Advance Decision to Refuse Treatment, often called a Living Will, is different: it lets you personally set out, in advance, specific treatments you want to refuse in the future, without needing anyone else to make that decision for you.
Can I have both a Living Will and a Health and Welfare LPA?
Yes, but the two documents need to be prepared carefully, because how they interact with each other matters legally. Where they contradict each other, the document signed most recently generally takes precedence. Where your attorney has authority over life-sustaining treatment, a later LPA can override an earlier Advance Decision covering the same treatment, and where the two documents differ, professional advice is strongly recommended before relying on either.
These documents need to be properly coordinated, and this is genuinely an area where proper advice and assistance makes a real difference. Read more about Advance Decisions to Refuse Treatment (Living Wills).
What can’t a Health and Welfare attorney decide?
An attorney isn’t an unrestricted substitute decision maker. They must not:
- make a decision for you while you still have capacity to make it yourself
- act beyond the authority actually given to them by the LPA
- make financial decisions simply because they hold a Health and Welfare LPA
- make certain deeply personal decisions on your behalf, such as consenting to marriage, divorce or sexual relations
- override restrictions imposed by other legislation
- simply impose their own personal preferences in place of yours
Can my attorney insist upon medical treatment?
Not in the sense of ordering doctors to provide whatever treatment they want. Your attorneys take part in lawful decision-making about consent and refusal, within the limits of their authority and the best interests framework. They don’t become doctors, and they don’t acquire a right to demand treatment that a clinician considers clinically inappropriate.
What duties do my attorneys have?
Your attorneys aren’t there to impose their own preferences. Their entire role is to work out what you would have wanted, and act accordingly, rather than substituting their own beliefs for yours.
Your attorney must: –
- assume you have capacity unless it’s shown otherwise
- help you make your own decisions wherever possible
- never treat you as incapable simply because they consider your actual decision unwise
- always act in your best interests
- always take account of your personal wishes, values and beliefs
- always follow any binding instructions you’ve given them
What happens if my attorneys and doctors disagree?
In most cases, your attorneys and the medical team will reach agreement about what’s in your best interests without any difficulty. Occasionally, disagreement does arise, particularly over serious treatment, care arrangements, or where you should live.
The starting point is discussion, not legal proceedings. Your attorneys and the professionals involved should weigh your past and present wishes, your beliefs and values, any instructions or preferences in your LPA, and the views of others interested in your welfare. A best interests meeting involving the relevant professionals, your attorneys and sometimes family members often resolves matters that seem stuck. GOV.UK specifically recommends consultation and best interests meetings for exactly this kind of situation. Where agreement still isn’t reached, a second medical opinion, independent advocacy, or mediation can often help before anything more formal becomes necessary.
Does my attorney always have the final say over my doctors?
Not necessarily; it depends on the decision and the authority your LPA actually gives them. Where you lack capacity and your registered LPA covers that decision, your attorney is normally the person legally authorised to make it, provided they act in line with the Mental Capacity Act 2005 and in your best interests. What they cannot do is require a doctor to provide treatment the doctor considers clinically inappropriate; the Mental Capacity Act Code of Practice is explicit that an LPA cannot be used to demand a particular treatment simply because the attorney wants it. Some decisions also carry their own restrictions, most notably life-sustaining treatment, which an attorney can only decide if you’ve expressly given them that authority.
What if the disagreement can’t be resolved?
If, after discussion and further medical opinion, agreement still can’t be reached on a sufficiently serious issue, an application can be made to the Court of Protection, which has jurisdiction over health and welfare decisions for people who lack capacity. GOV.UK specifically identifies unresolved disagreement between medical staff and an attorney or family as a situation where an application may be needed. The court’s task isn’t simply to decide who’s “right”; it decides the matter according to the Mental Capacity Act and your best interests.
Why your choice of attorney matters
This possibility is another reason the choice of attorney matters so much. A good attorney listens to medical advice, asks sensible questions, and works constructively with doctors and carers, while still being willing to speak firmly on your behalf when it’s genuinely needed. Someone who agrees with every recommendation without question is no better suited to the role than someone who is naturally confrontational. What you actually need is someone who understands your wishes, can weigh difficult information calmly, and keeps your best interests at the center of the decision.
What happens if I lose capacity without a Health and Welfare LPA?
A common assumption is that a spouse or next of kin can simply step in and make these decisions. They can’t, at least not as a matter of legal right.
Without an authorised attorney, healthcare and social care professionals make necessary decisions under the Mental Capacity Act’s best interests framework. They’re required to consult family and others where practical, but they aren’t required to follow what those people think should happen. Where there’s a significant dispute, or a decision that genuinely needs a judge, the Court of Protection may become involved.
A personal welfare deputy can be appointed by the court, but this isn’t simply the automatic health and welfare equivalent of a financial deputyship. The court usually only appoints one in particular circumstances, for example where there’s real doubt about whether decisions are being made in the person’s best interests, or where ongoing authority over a specific issue is genuinely needed.
Making an LPA means you choose the decision-makers yourself, while you still can.
Don’t leave that choice to a court or a set of professionals who’ve never met you. Arrange your Health and Welfare LPA with Wise Owl Wills while the choice is still entirely yours to make.
Do I need both types of LPA?
Health and welfare, and property and financial affairs, cover completely different territory, and most people benefit from having both in place.
If you lose capacity, a Health and Welfare attorney may be involved in deciding where you should live or what treatment you should receive, but someone also needs the authority to deal with:
- paying bills and fees on your behalf
- managing your bank accounts
- dealing with your property
- selling a home, if that becomes necessary
Your Health and Welfare attorney doesn’t gain financial authority simply because implementing a welfare decision costs money. That authority comes only from a separate Lasting Power of Attorney for Property and Financial Affairs.
Most people are best served by putting both in place at the same time, which is also the more cost-effective way to do it. Contact Wise Owl Wills and we’ll set up both documents for £150 in a single guided appointment.
Putting your Health and Welfare LPA in place
Getting an LPA right matters. The form has to be completed correctly and witnessed properly, and mistakes at this stage are one of the most common reasons applications are delayed or rejected by the Office of the Public Guardian.
How Wise Owl Wills helps
We offer a guided appointment, either by telephone or with a free home visit anywhere in the Greater Manchester area. Through that appointment we help you choose the right attorneys, decide whether they should act jointly or independently, and select suitable substitute attorneys. We help you think through your preferences around life-sustaining treatment and how you want your power of attorney to be used in practice. We then draft the application for you, guide you through signing, witnessing and having it endorsed by your certificate provider, and give you clear guidance on getting it registered once it’s complete.
What it costs
We charge £100 for a Health and Welfare Lasting Power of Attorney for one person. If you’d also like a Property and Financial Affairs LPA at the same time, we charge £150 for both documents together.
On top of our fee, the Office of the Public Guardian charges a registration fee, currently £92 per power of attorney. This is reduced to £46 if you earn less than £12,000 a year, and it may be waived entirely if you receive certain state benefits.
How long it takes
We can provide your completed forms for signing and witnessing within 7 days of receiving everything we need from you. Registration then sits with the OPG, which currently takes around 8 to 10 weeks to register an LPA once a complete, error-free application has been received.
Frequently Asked Questions
Can my spouse make medical decisions for me without an LPA?
No. There’s no automatic legal right for a spouse, partner or next of kin to make medical decisions on someone else’s behalf in England and Wales. Without a registered Health and Welfare LPA, those decisions are made by doctors and other professionals under the Mental Capacity Act’s best interests framework, who will consult family where practical but aren’t bound to follow their wishes.
Who decides whether I have lost mental capacity?
Capacity is usually assessed by whoever needs to make the particular decision at the time, such as a doctor deciding on treatment, or your attorney where the decision falls within their authority. The assessment must follow the two-stage test in the Mental Capacity Act 2005: whether there’s an impairment or disturbance affecting the mind or brain, and whether it means you can’t understand, retain, use or weigh the relevant information, or communicate your decision.
Can I appoint my children jointly as my attorneys?
Yes. You can appoint any combination of family members, friends or professionals, provided they’re over 18 and have the mental capacity to act as an attorney. Many parents appoint their adult children jointly and severally, so that any one of them can act, while still expecting them to discuss important decisions together.
What happens if one of my attorneys dies or can no longer act?
This depends on how you appointed them. If you named a replacement attorney, they step in. If you didn’t, and your attorneys were appointed jointly rather than jointly and severally, the LPA may no longer be usable at all, which is exactly why naming a replacement matters.
Can I change my attorneys later?
Only while you still have the mental capacity to do so. You can revoke an existing LPA and make a new one naming different attorneys, but this isn’t something that can be done once capacity has already been lost, which is another reason to choose carefully the first time.
Can next of kin override a registered LPA?
No. Once an LPA is registered and your attorneys are acting within their authority, next of kin have no legal power to override their decisions, however strongly they may disagree. Professionals are, however, expected to take the views of family into account as part of a proper decision-making process.
Does a Health and Welfare LPA end when I die?
Yes. A Health and Welfare LPA only has effect during your lifetime. It ends automatically on your death, at which point decisions about your estate pass to your executors under your Will, not your attorneys.
Can one attorney be responsible for health decisions and another for money?
Yes. Health and Welfare and Property and Financial Affairs are entirely separate LPAs, and you can appoint different people, or the same people, for each. Many people choose different attorneys for each role, based on who’s best suited to that particular kind of decision.
Next Steps
Make sure the people making the most personal decisions about your life know you, know your wishes, and have the legal authority to speak for you.
If you’d like to talk through your options, get in touch with Wise Owl Wills for a guided appointment by phone, or a free home visit if you’re in the Greater Manchester area.
Call us today on 0161 524 1033
Or book your free home consultation online