There may come a time when someone you love can no longer make decisions about their own medical treatment or care. Perhaps they’re living with advanced dementia, have suffered a stroke, or are experiencing another condition that affects their mental capacity. Without the right legal arrangements in place, even close family members have no automatic right to make these crucial decisions on their behalf.This is where a Lasting Power of Attorney for Health and Welfare becomes essential. It’s a legal document that allows someone to appoint trusted individuals—called attorneys—to make decisions about their healthcare, daily routine, and living arrangements if they lose the ability to decide for themselves.
Understanding how this works, why it matters, and how to set one up can make an enormous difference when difficult times arrive.
What is a Lasting Power of Attorney?
A Lasting Power of Attorney (LPA) is a legal document that allows you to choose who will make decisions on your behalf if you become unable to make them yourself. There are two types of LPA:
Property and Financial Affairs LPA covers decisions about money, property, and financial matters. It can be used as soon as it’s registered, even if you still have mental capacity.
Health and Welfare LPA covers decisions about your daily routine, medical treatment, and where you live. This is the one we’re focusing on here, and it can only be used once you lack the mental capacity to make specific decisions yourself.
You need mental capacity to create an LPA, which is why it’s so important to arrange this whilst you’re well, rather than waiting until health problems emerge.
Why Does It Matter for Care Home Residents?
When someone moves into a care home, particularly if they’re living with dementia or other conditions affecting mental capacity, countless decisions need to be made about their daily life and medical care:
- Whether to consent to medical treatment or procedures
- Decisions about medication, including pain relief
- Where they should live and whether to move care homes
- Their daily routine, including what they eat and what activities they participate in
- Whether to consent to dental treatment or other healthcare
- Decisions about life-sustaining treatment
Without an LPA, these decisions can become complicated. Healthcare professionals will make treatment decisions in someone’s best interests, but family members have no automatic legal authority to give or refuse consent, even if they’re the next of kin.
This can lead to confusion, disagreements, and delays at times when swift, informed decisions are needed. Having an appointed attorney removes this uncertainty.
What Decisions Can an Attorney Make?
An attorney appointed under a Health and Welfare LPA has broad powers to make decisions about the person’s care and medical treatment, but these powers only come into effect when the person lacks capacity to make specific decisions themselves.
Healthcare decisions include consenting to or refusing medical treatment, deciding which healthcare professionals should provide care, and accessing medical records to make informed choices.
Daily care decisions cover where the person lives (including moving into or between care homes), their daily routine, what they wear, their diet, and who they have contact with.
Life-sustaining treatment is a special category. The person making the LPA must explicitly state whether they want their attorney to have the power to give or refuse life-sustaining treatment. This is a separate decision that requires careful thought and clear instruction on the LPA form.
What attorneys cannot do:
- Make decisions if the person still has capacity to make that specific decision themselves
- Demand treatment that healthcare professionals believe is clinically inappropriate
- Make decisions that conflict with a valid Advance Decision to Refuse Treatment
- Act in ways that aren’t in the person’s best interests
- Make decisions about matters not covered by the LPA
Who Can Be Your Attorney?
You can appoint one or more people as your attorney. This should be someone you trust completely to make difficult decisions in your best interests.
Common choices include:
- Adult children
- Your spouse or partner
- Close friends
- Other trusted family members
Important requirements:
Your attorney must be at least 18 years old and cannot be bankrupt (though this only affects Property and Financial Affairs LPAs). You cannot appoint someone who lacks mental capacity themselves.
Think carefully about who you choose. They’ll potentially make life-or-death decisions on your behalf, so they need to understand your values, wishes, and preferences. They should be someone who’ll remain calm under pressure and can work with healthcare professionals constructively.
Appointing multiple attorneys:
You can appoint more than one attorney to act “jointly” (they must agree on all decisions together), “jointly and severally” (they can make decisions individually or together), or “jointly for some decisions and jointly and severally for others.”
Joint appointments provide checks and balances, but can slow down urgent decisions if attorneys disagree. Joint and several appointments offer more flexibility but require complete trust that each attorney will act appropriately.
Many people appoint replacement attorneys who step in if an original attorney can no longer act due to their own ill health, death, or other reasons.
How Does an Attorney Know Your Wishes?
When completing your LPA, you have the opportunity to provide guidance and instructions to your attorneys about how you want decisions made.
Preferences and instructions:
You can include specific instructions that your attorney must follow, such as dietary requirements based on religious beliefs, or preferences they should consider but don’t have to follow, such as wanting to remain living at home for as long as possible.
Be thoughtful about what you include. Overly specific instructions can make it difficult for attorneys to respond to changing circumstances. For example, insisting you never want to move to a care home might create problems if staying at home becomes genuinely unsafe.
Making your values clear:
Beyond the formal LPA document, have conversations with your chosen attorneys about your values and priorities. Discuss:
- What quality of life means to you
- Your views on medical intervention versus comfort care
- Religious or spiritual beliefs that affect healthcare decisions
- Your feelings about care homes versus other living arrangements
- What matters most to you in daily life
These conversations help your attorney make decisions that truly reflect who you are, even when circumstances arise that you couldn’t have anticipated when creating the LPA.
The Mental Capacity Act and Best Interests
Health and Welfare LPAs operate under the Mental Capacity Act 2005, which provides crucial safeguards. The Act establishes five key principles:
A person must be assumed to have capacity unless it’s established that they lack it. Capacity isn’t all-or-nothing—someone might be able to make some decisions but not others, and capacity can fluctuate.
People must be supported to make their own decisions before anyone concludes they lack capacity. This might mean presenting information differently, choosing the right time of day, or having someone familiar present.
Unwise decisions don’t prove lack of capacity. We all make choices others might disagree with, and that remains true even when we have health problems.
Decisions made on someone’s behalf must be in their best interests and should be the least restrictive option possible.
Before making decisions, attorneys must consider:
- Whether the person might regain capacity to make this decision
- The person’s past and present wishes, feelings, beliefs, and values
- The views of other people the person would want consulted
- Whether there’s a less restrictive way to achieve the same outcome
Healthcare professionals at care homes like ours are trained to support attorneys in making best interests decisions, providing medical information and guidance whilst respecting the attorney’s legal authority.
When Does the LPA Come Into Effect?
Unlike a Property and Financial Affairs LPA, which can be used as soon as it’s registered, a Health and Welfare LPA only becomes active when you lack the mental capacity to make specific decisions yourself.
Assessing capacity:
Mental capacity is decision-specific. Someone with dementia might lack capacity to manage their finances but still have capacity to decide what they want for lunch. Capacity can also fluctuate—someone might be able to make decisions on good days but not on bad days.
Healthcare professionals assess capacity when specific decisions need to be made. They’ll determine whether the person can:
- Understand the information relevant to the decision
- Retain that information long enough to make the decision
- Use or weigh that information as part of making the decision
- Communicate their decision
If someone lacks capacity for a particular decision, that’s when the attorney steps in.
Activation in practice:
When someone moves into a care home, staff will ask whether an LPA is registered. If you’re the attorney, you’ll work closely with care staff and healthcare professionals, providing consent for treatments and helping make decisions about daily care as needed.
You won’t make every minor decision—staff will still ask the person themselves about daily choices whenever possible. Your role becomes more prominent for significant decisions or when the person can no longer express their wishes about their care.
How to Set Up a Health and Welfare LPA
Creating an LPA requires following a specific legal process, but it’s more straightforward than many people expect.
Step 1: Obtain the forms
You can download the LPA forms from the Office of the Public Guardian website or order paper copies. There’s a comprehensive guide included that explains each section.
Step 2: Complete the form
The person making the LPA (called the donor) completes the form, appointing their chosen attorneys and including any instructions or preferences. You’ll also need to nominate someone called a “certificate provider” who confirms you understand what you’re doing and aren’t being pressured.
The certificate provider must have known you for at least two years or be a professional such as a GP or solicitor. They cannot be one of your attorneys or a family member.
Step 3: Sign the document
The LPA must be signed in a specific order: first the donor, then the certificate provider, then the attorneys. Each person signs different sections, and witnesses are required for certain signatures.
Step 4: Register with the Office of the Public Guardian
The LPA must be registered before it can be used. Registration currently costs £82, though there are exemptions and reductions available if you’re receiving certain benefits.
You can register immediately after creating the LPA, or wait until it’s needed. However, registration can take several weeks, so many people register straightaway to avoid delays when capacity is lost.
Getting professional help:
Whilst you can complete an LPA yourself, many people use a solicitor, particularly if their situation is complex. Solicitors for the Elderly specialise in this area and can ensure everything is completed correctly.
Professional help is especially valuable if you’re appointing multiple attorneys with complex arrangements, have specific instructions you want to include, or want to discuss your situation with someone experienced in capacity planning.
What Happens Without an LPA?
If someone loses mental capacity without having made an LPA, decisions about their health and welfare become significantly more complicated.
Healthcare professionals will make treatment decisions based on what they consider to be in the person’s best interests. They should consult family members, but relatives have no legal authority to consent to or refuse treatment.
For major decisions, such as moving someone into a care home against their wishes or making significant changes to their care arrangements, an application to the Court of Protection may be necessary. This is expensive, time-consuming, and stressful for families.
The Court of Protection can appoint a deputy to make ongoing decisions, but this involves legal proceedings, annual supervision fees, and ongoing reporting requirements. It’s far more restrictive and expensive than having an LPA in place.
Advance Decisions to Refuse Treatment:
Someone without an LPA can still make an Advance Decision (sometimes called a Living Will) refusing specific medical treatments. However, this only covers treatment refusals, not consenting to treatment or making broader care decisions. An LPA offers far more comprehensive protection.
The NHS provides guidance on Advance Decisions and how they work alongside LPAs.
LPAs and Care Home Life
When someone with an LPA lives in a care home, the attorney works in partnership with care staff to ensure the person receives appropriate care that reflects their wishes.
Day-to-day care decisions:
Care staff make routine decisions about daily care, always seeking the person’s views wherever possible. The attorney typically isn’t involved in minor decisions like what clothes to wear or whether to join an activity, unless the person specifically lacks capacity for these choices.
Medical decisions:
For medical treatment, healthcare professionals will consult the attorney when the person lacks capacity to consent. This might include:
- Decisions about antibiotics during an infection
- Consent for dental treatment
- Decisions about hospital admission
- End-of-life care planning
- Changes to medication regimes
Having recognised when care home placement became necessary, attorneys often remain involved in ensuring the person settles well and receives care that matches their preferences and values.
Working with care staff:
Good communication between attorneys and care home staff is essential. At Blissful Care Homes, we maintain regular contact with attorneys, keeping them informed about the person’s wellbeing and involving them in care planning discussions.
We understand that attorneys are balancing their legal responsibilities with their emotional connection to their loved one. Our approach to care recognises this and supports attorneys in their important role.
When Relationships Break Down
Unfortunately, disputes between attorneys, or between attorneys and family members, do sometimes occur. This is particularly common when end-of-life decisions need to be made.
If attorneys disagree:
When multiple attorneys are appointed jointly, they must reach agreement on decisions. If they cannot agree, the matter may need to be referred to the Court of Protection. This is one reason why choosing attorneys who communicate well and share similar values is so important.
If family members object:
Attorneys have the legal authority to make decisions, but they must consider the views of others close to the person. If family members believe an attorney is acting inappropriately, they can raise concerns with the Office of the Public Guardian or apply to the Court of Protection.
Safeguards exist:
The Office of the Public Guardian investigates concerns about attorneys who may be abusing their position or not acting in the person’s best interests. Healthcare professionals also have a duty to question decisions that seem clearly contrary to someone’s wellbeing.
These safeguards protect vulnerable people whilst respecting the legal authority properly appointed attorneys hold.
Reviewing and Updating Your LPA
Once registered, an LPA remains valid unless it’s revoked or circumstances change that make it invalid (such as the attorney losing their own mental capacity or passing away).
You can cancel your LPA at any time whilst you still have mental capacity. You need to complete a formal revocation form and notify the Office of the Public Guardian and your attorneys.
You cannot change your LPA once it’s been signed. If you want to appoint different attorneys or change your instructions, you need to revoke the existing LPA and create a new one.
Regular conversations with your attorneys ensure they understand your current wishes, even if the formal LPA document remains unchanged. Your values and preferences may evolve over time, and keeping attorneys informed helps them make decisions that reflect who you are now, not just who you were when you created the LPA.
Starting the Conversation
Talking about LPAs means acknowledging that there may come a time when you can’t make your own decisions. That’s uncomfortable, which is why many people put it off.
But creating an LPA isn’t about expecting the worst—it’s about taking control whilst you can. It’s ensuring that if something happens, the people you trust most will be able to make decisions that reflect your values and wishes.
These conversations are easier when started early, before health problems emerge. They’re part of responsible planning, like making a will or arranging life insurance. The peace of mind they provide—for you and your family—is invaluable.
If you’re considering moving into a care home, or supporting someone through that transition, having an LPA in place removes uncertainty about who can make important decisions. It ensures your voice remains heard even when you can’t speak for yourself.
How Blissful Care Homes Can Help
Whilst we can’t provide legal advice about LPAs, our team has extensive experience working with attorneys and understanding how LPAs operate in practice.
When you’re choosing a care home, we can discuss how having an LPA in place affects decision-making and care planning. We work closely with attorneys to ensure residents receive care that reflects their documented wishes and values.
If you have questions about how LPAs work within our homes, or would like to discuss care options for someone who has or needs an LPA, please get in touch. We’re here to provide clarity and support through what can feel like a complex process.
The legal framework exists to protect people at their most vulnerable. Understanding how Lasting Powers of Attorney work, and having the right arrangements in place, ensures that protection is there when it’s needed most—providing security, dignity, and peace of mind for everyone involved.
