A Health and Welfare Lasting Power of Attorney allows you to choose trusted people to make certain personal, care and medical decisions if you later lose the mental capacity to make those decisions yourself.
It can cover everyday matters such as where you live, what support you receive and how your daily routine is managed. It can also cover medical treatment and, if you specifically choose to give that authority, decisions about life-sustaining treatment.
A Health and Welfare LPA is different from a Property and Financial Affairs LPA. It cannot be used simply because you would prefer somebody else to decide. Your attorneys can only act when you lack capacity for the particular decision that needs to be made.
This guide explains how a Health and Welfare LPA works in England and Wales, what decisions attorneys may be able to make, and the safeguards that apply.
What is a Health and Welfare LPA?
A Health and Welfare Lasting Power of Attorney is a legal document through which you, as the donor, appoint one or more attorneys to make or help with decisions about your personal welfare.
You must have mental capacity to make the LPA. This means you must understand the nature and effect of the document and the authority you are giving at the time it is created.
The LPA must be registered with the Office of the Public Guardian before it can be used.
Unlike a Property and Financial Affairs LPA, a Health and Welfare LPA can only be used when you lack capacity for the particular decision in question.
What decisions can a Health and Welfare attorney make?
The precise authority depends on the wording of the registered LPA. Subject to that wording and the law, attorneys may be able to make decisions about:
- where the donor lives;
- day-to-day care and support;
- washing, dressing and eating;
- medical examinations and treatment;
- care providers and care arrangements;
- contact with other people;
- social and leisure activities;
- consenting to or refusing particular treatment; and
- life-sustaining treatment, but only where the donor has expressly given that authority.
The attorney cannot simply take over every aspect of the donor’s life. They can only act within the authority given by the LPA and only when the donor lacks capacity for the relevant decision.
When can a Health and Welfare LPA be used?
A Health and Welfare LPA can only be used after registration and when the donor lacks mental capacity to make the particular decision.
Capacity is decision-specific and time-specific. A person may be unable to make a complex medical decision but still be able to choose what to eat, what to wear or whom to see.
Attorneys should therefore avoid making broad assumptions. They must consider each decision separately and support the donor to participate as fully as possible.
What does mental capacity mean?
Mental capacity means being able to make a particular decision at the time it needs to be made.
Broadly, a person needs to be able to:
- understand the relevant information;
- retain that information long enough to decide;
- use or weigh the information as part of the decision-making process; and
- communicate their decision by any appropriate means.
A person should be assumed to have capacity unless it is established otherwise. They should also receive practical support to help them decide before anybody concludes that they cannot.
Making a decision that others consider unwise does not, by itself, mean that the person lacks capacity.
How is this different from a Property and Financial Affairs LPA?
The two types of LPA cover different areas.
A Health and Welfare LPA relates to personal care, health and medical decisions. A Property and Financial Affairs LPA relates to money, property, bills, accounts, pensions and other financial matters.
A financial LPA may be used while the donor still has capacity if the document permits this and the donor agrees. A Health and Welfare LPA can only be used once the donor lacks capacity for the particular decision.
Read our guide to a Property and Financial Affairs LPA for a detailed comparison.
Why make a Health and Welfare LPA?
Without a suitable Health and Welfare LPA, family members do not automatically have authority to make health, care or medical decisions for you.
Professionals involved in your care may consult people close to you, but consultation is not the same as having formal decision-making authority.
A Health and Welfare LPA allows you to choose the people you trust while you still have capacity. It also lets you record preferences and instructions that may guide future decisions.
Our earlier guide explains why your children cannot automatically make decisions for you.
Who can be appointed as an attorney?
An attorney must be aged 18 or over.
You may appoint:
- a spouse or civil partner;
- an adult child;
- another relative;
- a trusted friend;
- a suitable professional; or
- more than one person.
Choose people who understand your values, can communicate calmly with professionals and family members, and are willing to make potentially sensitive decisions.
It is sensible to discuss the role with them before completing the LPA.
How can several attorneys be appointed?
If you appoint more than one attorney, you must decide how they will act.
Jointly
All attorneys must agree and act together for every decision.
This may provide reassurance for major decisions, but it can be inflexible. If one joint attorney cannot act, the whole appointment may be affected unless replacement arrangements work effectively.
Jointly and severally
The attorneys may act together or independently.
This can be more practical where decisions need to be made quickly or attorneys live in different places. It also means each attorney may be able to act alone.
Jointly for some decisions and jointly and severally for others
You can require all attorneys to agree on specified major decisions while allowing them to act independently on other matters.
The wording needs to be clear and workable so that care providers and medical professionals can understand who has authority.
Should you appoint replacement attorneys?
Replacement attorneys can step in if an original attorney can no longer act.
This may happen if an attorney:
- dies;
- loses mental capacity;
- chooses to stop acting;
- is removed by the Court of Protection; or
- can no longer act because a marriage or civil partnership with the donor has ended, depending on the wording of the LPA.
Replacement arrangements are especially important where attorneys are appointed jointly.
What is the certificate provider?
The certificate provider is an independent person who confirms that the donor understands the LPA and is making it freely, without pressure or fraud.
The certificate provider must meet the eligibility requirements and be able to form a genuine view about the donor’s understanding and freedom of choice.
This is one of the key safeguards within the LPA process.
What is life-sustaining treatment?
Life-sustaining treatment is treatment that a healthcare professional considers necessary to sustain life.
It may include:
- a major operation;
- artificial ventilation;
- cardiopulmonary resuscitation;
- clinically assisted nutrition or hydration;
- antibiotics for a serious infection; or
- other treatment needed to keep the person alive.
Whether a treatment is life-sustaining depends on the circumstances. A treatment that is routine in one situation may be life-sustaining in another.
Can attorneys decide about life-sustaining treatment?
Only if the donor specifically gives them that authority in the Health and Welfare LPA.
The donor must choose whether:
- the attorneys may give or refuse consent to life-sustaining treatment; or
- the attorneys do not have that authority, leaving the decision with the healthcare professionals responsible for the donor’s treatment, subject to the law.
Where attorneys do have authority, they must still act in the donor’s best interests and within the scope of the LPA.
An attorney cannot demand treatment that clinicians do not consider clinically appropriate.
How does an LPA interact with an Advance Decision?
An Advance Decision to Refuse Treatment allows a person to refuse specified medical treatment in advance if they later lack capacity.
The interaction between an Advance Decision and a Health and Welfare LPA depends on when each document was made and the authority given.
For example, a valid and applicable Advance Decision made after an LPA may override the attorney’s authority in relation to the treatment it covers. An LPA made later may affect an earlier Advance Decision if the attorneys are expressly given authority over the same treatment.
Because the documents can interact in important ways, they should be reviewed together. Learn more about our Advance Decisions to Refuse Treatment service.
What preferences and instructions can be included?
A donor may include preferences and instructions in the LPA.
A preference tells attorneys how the donor would like them to approach a matter but is not normally legally binding.
An instruction tells attorneys what they must or must not do and is binding if it is legally valid and workable.
Possible subjects include:
- preferences about living at home for as long as reasonably possible;
- religious, cultural or dietary wishes;
- people the attorneys should consult;
- preferred care arrangements;
- how pets should be considered when planning care;
- views about particular types of treatment; or
- how attorneys should approach a move into residential care.
Instructions must not require attorneys or professionals to break the law or make the LPA impossible to use.
What duties does a Health and Welfare attorney have?
An attorney must follow the Mental Capacity Act 2005, the registered LPA and relevant guidance.
Important duties include:
- supporting the donor to make their own decisions where possible;
- checking capacity for each decision;
- acting in the donor’s best interests;
- involving the donor as fully as possible;
- considering the donor’s past and present wishes;
- taking account of relevant beliefs and values;
- consulting appropriate people where practical;
- avoiding conflicts of interest;
- maintaining confidentiality; and
- choosing the least restrictive suitable option.
The attorney must not make decisions simply because they personally prefer a different outcome.
How should an attorney make a best-interests decision?
Where the donor lacks capacity, the attorney must consider all relevant circumstances.
This may include:
- whether the decision can wait until capacity returns;
- the donor’s past and present wishes;
- any written preferences or instructions;
- the donor’s beliefs and values;
- the views of family, carers and professionals involved;
- the available options and their consequences; and
- the least restrictive way of meeting the donor’s needs.
The attorney should not base a decision solely on the donor’s age, appearance, condition or behaviour.
Can an attorney choose where the donor lives?
A Health and Welfare LPA may give attorneys authority to decide where the donor should live once the donor lacks capacity for that decision.
This could include decisions about:
- remaining at home with support;
- moving closer to family;
- supported living;
- residential care; or
- nursing care.
The attorney must consider the donor’s wishes, care needs, safety, available support and the practical options.
Although the attorney may decide about residence, the financial arrangements may need to be handled by a Property and Financial Affairs attorney, deputy or another person with suitable authority.
Can an attorney choose a care home?
An attorney may be able to choose or approve a care placement within the authority of the LPA.
They should consider the donor’s preferences, location, care needs, family contact, cultural requirements and available funding.
Where a placement would involve significant restrictions on the donor’s liberty, additional legal safeguards may apply.
Can an attorney make decisions about medical treatment?
Yes, where the LPA gives the relevant authority and the donor lacks capacity for the decision.
The attorney may be involved in decisions about examinations, medication, surgery and other treatment.
Healthcare professionals should consult an attorney who has authority. The attorney should ask questions, understand the options and make a best-interests decision rather than simply accepting or rejecting treatment without proper consideration.
What decisions can an attorney not make?
An attorney cannot:
- make decisions while the donor has capacity for them;
- make financial decisions under a Health and Welfare LPA;
- consent to marriage or civil partnership for the donor;
- consent to sexual relations on the donor’s behalf;
- vote on the donor’s behalf;
- make or change the donor’s will;
- demand treatment that is not clinically appropriate;
- act outside the authority given by the LPA; or
- refuse life-sustaining treatment unless the donor expressly granted that authority.
Some decisions are so personal that nobody else can make them on a person’s behalf.
Can family members overrule the attorney?
A family member cannot overrule a properly authorised attorney simply because they disagree.
However, concerns about an attorney’s conduct can be raised with the Office of the Public Guardian. Serious disputes may need to be considered by the Court of Protection.
Good communication and consultation can often reduce conflict, but the attorney’s duty is to the donor rather than to other family members.
Can doctors overrule an attorney?
Healthcare professionals must recognise a valid attorney’s authority, but they are not required to provide treatment that is clinically inappropriate.
If there is a serious disagreement about the donor’s best interests, treatment or the scope of the attorney’s authority, an application to the Court of Protection may be needed.
How does an attorney prove their authority?
Care providers, hospitals or other organisations may ask to see:
- the original registered LPA;
- an official or certified copy;
- an online access code, where the service is available;
- proof of the attorney’s identity; and
- information showing that the donor lacks capacity for the relevant decision.
The attorney should explain that their authority is limited to health and welfare decisions and only applies when the donor lacks capacity.
Can the donor change or cancel the LPA?
While the donor has mental capacity, they may revoke the LPA or remove an attorney through the correct formal process.
Changing the attorneys is not usually achieved by simply editing the registered form. A new LPA may be needed, depending on the change required.
The Office of the Public Guardian should be informed of relevant changes.
When does a Health and Welfare LPA end?
The LPA ends when the donor dies.
It may also end or be affected if:
- the donor revokes it while they have capacity;
- the Court of Protection cancels it;
- a sole attorney can no longer act and there is no effective replacement;
- joint attorneys can no longer act under the appointment structure; or
- another legal event affects the appointment.
After the donor dies, decisions about the estate fall to the executors or administrators, not the attorneys.
Common misunderstandings about Health and Welfare LPAs
“My family can already make medical decisions for me.”
No. Family members may be consulted, but they do not automatically have formal decision-making authority.
“My attorney can act as soon as the LPA is registered.”
No. A Health and Welfare attorney can only act when the donor lacks capacity for the particular decision.
“The LPA covers my money as well.”
No. A separate Property and Financial Affairs LPA is required for financial decisions.
“The attorney can always refuse life-sustaining treatment.”
No. They can only do so if the donor specifically granted that authority in the LPA.
“A dementia diagnosis means the attorney takes over everything.”
No. Capacity must be considered for each decision. A person may retain capacity for many everyday choices.
Questions to consider before making a Health and Welfare LPA
- Who understands my values and wishes?
- Who can communicate calmly with doctors, carers and family?
- Would my chosen attorneys work well together?
- Should they act jointly or independently?
- Do I want replacement attorneys?
- Should my attorneys have authority over life-sustaining treatment?
- Are there preferences or instructions I want to record?
- Do I also need a Property and Financial Affairs LPA?
- Do I have an Advance Decision that should be reviewed alongside the LPA?
Health and Welfare LPA guidance in Dorset
Brooks Wills supports individuals and families across Poole, Bournemouth, Christchurch, wider Dorset and West Hampshire with clear, professional Lasting Power of Attorney guidance.
We explain the choices in plain English, including who to appoint, how attorneys should act and whether authority over life-sustaining treatment should be included.
Learn more about our Lasting Powers of Attorney services.
Brooks Wills is a member of the Institute of Professional Willwriters and the Society of Will Writers.
Call, message or book a consultation to discuss putting a Health and Welfare LPA in place.
Simplifying legacies, securing tomorrow.
This article provides general information for England and Wales. It is not legal or medical advice. The appropriate arrangements depend on individual circumstances.
Frequently asked questions
When can a Health and Welfare LPA be used?
It can only be used after registration and when the donor lacks capacity to make the particular health or welfare decision.
Can my attorney decide where I live?
They may be able to if the LPA gives that authority and you lack capacity for the decision. They must consider your wishes, needs and best interests.
Can an attorney refuse medical treatment?
They may be able to refuse treatment within the authority granted by the LPA and where you lack capacity. Refusal of life-sustaining treatment is only possible if you expressly gave them that authority.
Does a Health and Welfare LPA cover finances?
No. It does not authorise attorneys to manage bank accounts, property, bills or investments. A separate Property and Financial Affairs LPA is needed.
Can I make a Health and Welfare LPA after a dementia diagnosis?
Possibly. A diagnosis does not automatically mean that the person lacks capacity to make an LPA. The question is whether they understand the document and the authority being granted at that time.
What happens if there is no Health and Welfare LPA?
Health and care professionals may make best-interests decisions and consult family members. For significant disputes or ongoing authority, the Court of Protection may need to become involved.
