The role of a Health and Welfare LPA when making decisions for someone in hospital

When a loved one is admitted to hospital and lacks mental capacity to make decisions for themselves, having a Health and Welfare Lasting Power of Attorney (LPA) in place can be vital. But even if you are named as their attorney, you may be unsure how and when to use that authority or how it interacts with the views of doctors or next of kin.

‘Being appointed under a Health and Welfare LPA gives you important legal authority, but many attorneys are unsure how far that power goes, especially in a medical setting,’ explains Lucy Brown, head of the private client team. ‘If your views about treatment or discharge differ from medical staff or family members, it is essential to understand how to assert your role in a constructive and lawful way.’

What is your role under a Health and Welfare LPA?

A Health and Welfare LPA allows the donor (the person who made the LPA) to appoint one or more people to make decisions about their personal welfare if they lose mental capacity. This includes decisions about medical treatment, care arrangements, and daily routines. As an attorney, you must act in the donor’s best interests, considering their wishes and values – even if they can no longer express them.

Although most attorneys are aware they hold this power, there can be uncertainty about when and how to use it in practice, especially in a hospital setting.

Practical issues for attorneys

If the donor is admitted to hospital and you need to act, you may be wondering:

  • Do I need to show the LPA to hospital staff?

Yes. A certified copy of the registered LPA should be provided to the hospital so they can note it on the medical records. This helps ensure that your authority is recognised, and that decisions are not made without your involvement.

  • Should the LPA be recorded on hospital systems?

Again, yes. Ask for the LPA to be formally recorded in the patient’s medical notes, especially in case of staff changes or emergency treatment. This helps maintain continuity and avoids confusion.

  • What if there is more than one attorney?

Where more than one attorney has been appointed under a Health and Welfare LPA, it is crucial to understand how they must act – especially in hospital settings where decisions often need to be made quickly. If attorneys are appointed ‘jointly and severally’ any one of them can make decisions independently, which can help avoid delays. However, if they are appointed ‘jointly’ all attorneys must agree on every decision, which can be more time-consuming and may lead to deadlock if views differ.

This distinction is vital in a hospital environment, where medical teams may need prompt consent for treatment, or urgent input about care preferences. If there is uncertainty about how the attorneys are authorised to act, this can result in confusion, delays, or even exclusion from the decision-making process.

Hospital treatment decisions

Health and Welfare LPAs are specifically designed for circumstances like hospital admission, when your loved one is unwell and no longer able to make decisions for themselves. If you are their appointed attorney, and the LPA includes authority to make decisions about life-sustaining treatment, you may be called upon to:

  • give or refuse consent to medical treatment;
  • agree to or object to proposed surgery or medication;
  • speak directly with doctors and healthcare teams about care plans; or
  • make sure that decisions reflect what your loved one would have wanted by drawing on past conversations, written wishes, or their known values and beliefs.

In these moments, doctors must involve you in decision-making where you have authority under the LPA. However, they may still challenge your decision if they believe it goes against their patient’s best interests. That is why maintaining open and respectful communication with medical staff is essential. You are there to represent the person’s voice when they cannot speak for themself.

Discharge and care planning

Once your loved one’s hospital treatment is coming to an end, your role as an attorney under a Health and Welfare LPA often becomes even more important. Discharge planning is rarely straightforward, and you may be asked to help shape what happens next, especially if they cannot make those decisions themselves. As their attorney, you will be expected to work with medical and social care teams to ensure that any ongoing care reflects your loved one’s needs, preferences, and best interests.

This can involve some difficult decisions, and it is natural to have questions, such as:

  • can they return home safely with the right support in place?
  • is a move into a care home the most appropriate option?
  • what help will they need to ensure continuity of care after leaving hospital?

If you believe the donor strongly wished to return home, but this conflicts with the hospital discharge team’s view, you can challenge the proposed care plan. If necessary, legal advice may help assert your rights or explore alternative discharge arrangements.

What if there is a disagreement?

Should jointly appointed attorneys disagree on a particular decision, the best course of action is to try to resolve matters sensibly through discussion and mediation. If this proves impossible, the Court of Protection may need to be involved.

Other complex situations can also arise during or after a hospital stay, particularly where the person’s care needs are significant or where there is disagreement about the best course of action. These might include:

  • a dispute about whether placing your loved one in a care home without their consent amounts to a deprivation of liberty, which may require formal authorisation under the law;
  • a safeguarding referral being triggered by concerns around the proposed discharge arrangements, particularly if professionals believe that returning home may not be safe; or
  • tension or pressure from other family members or professionals who disagree with the decisions you are making as an attorney, even if you are acting in line with what the donor would have wanted.

In such emotionally charged circumstances like these, seeking legal advice can help you understand your position, assert your authority as an attorney, and ensure that decisions are lawful and genuinely reflect the previously expressed wishes and rights of your loved one. In some cases, you may also need to involve the Office of the Public Guardian or the Court of Protection to resolve disputes or clarify legal boundaries.

Common misconceptions about LPAs

Many families assume that ‘next of kin’ have automatic rights to make medical decisions. In fact, unless an LPA is in place, doctors will make decisions based on what they consider to be in the patient’s best interests, which may or may not align with the family’s views.

Without a Health and Welfare LPA:

  • family members cannot demand or refuse treatment on the patient’s behalf;
  • care decisions are made by professionals, not relatives; and
  • there may be no formal advocate to speak for the patient’s wishes.

When to involve the Office of the Public Guardian (OPG)

The OPG oversees the conduct of attorneys and can be contacted if:

  • you believe another attorney is acting improperly;
  • professionals are refusing to recognise your LPA authority; or
  • the donor’s best interests are not being respected.

In some cases, you may need to apply to the Court of Protection for a decision or declaration, particularly if there is disagreement over treatment or care.

How we can help

Our experienced team can help you:

  • understand your role and rights as a health and welfare attorney;
  • ensure the LPA is registered and properly recognised by medical professionals;
  • advise on disputes with medical teams or co-attorneys;
  • challenge care decisions or discharge plans that conflict with the donor’s wishes; and
  • apply to the Court of Protection if necessary.

For expert advice on using a Health and Welfare LPA in a hospital situation, contact Lucy Brown in our private client team on 0191 297 0011 or via email at whitley.bay@kiddspoorlaw.com.

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.

End-of-life care planning and the role of a health and welfare LPA

The recently published Terminally Ill Adults (End of Life) Bill, aims to permit people in England and Wales who have an incurable illness to be legally assisted by a doctor to die. Whichever side of the debate you support, the bill is a reminder that it is important to make your wishes clear if you have strong views about your end-of-life care.

One option is to make a health and welfare lasting power of attorney (LPA) which gives trusted individuals the power to act in your best interests and communicate your preferences when you can no longer express them yourself.

It is a myth that your loved ones will be able to make these important healthcare decisions. Without a health and welfare LPA in place, your family cannot legally make decisions about your healthcare. While they will likely be consulted, decisions may instead fall to healthcare professionals or could even be subject to court intervention.

‘Health and welfare LPAs empower individuals of all ages to take control of their future care, ensuring that their values and preferences are respected even when they cannot voice them,’ explains Lucy Brown, head of wills and probate. ‘LPAs are not just for the elderly: anyone can lose capacity due to an illness or accident. An LPA ensures your wishes are respected, regardless of age.’

The Terminally Ill Adults (End of Life) Bill

The Terminally Ill Adults (End of Life) Bill, sometimes referred to as the ‘Assisted Dying Bill’, represents a significant shift in how the law approaches end-of-life choices. It proposes to allow terminally ill adults to request medical assistance to end their life under tightly regulated conditions. While the bill is still in its early stages and could take considerable time to come into force (if at all), its introduction has highlighted issues about individual autonomy and dignity in the face of terminal illness.

Key proposals under the bill include the following:

  • The bill would permit a terminally ill adult to seek assistance from a doctor to end their life via a process known as physician-assisted suicide. This differs from voluntary euthanasia, where a healthcare professional administers medication to end a person’s life – something that will remain illegal.  Under the proposed legislation, a doctor may prescribe and prepare the ‘approved’ substance, but the individual must self-administer  Under the initial proposals, no doctor or any other person would be allowed to administer the medication on behalf of the terminally ill individual.
  • The bill imposes the following requirements on the person seeking assistance:
    • they must be resident in England or Wales and have been registered with a GP for at least 12 months;
    • they must have the mental capacity to make the choice and be deemed to have expressed a clear, settled and informed wish, free from coercion or pressure;
    • they must be expected to die within six months;
    • they must make two separate declarations, witnessed and signed (by them or a proxy on their behalf), about their wish to die;
    • two independent doctors must be satisfied the person is eligible, and there must be at least seven days between the doctors’ assessments; and
    • a High Court judge must hear from at least one of the doctors and can also question the dying person, or anyone else they consider appropriate. There must be a further 14 days after the judge has made the ruling (although this can be shortened to 48 hours in some circumstances.

While the bill passes through Parliament, it serves as a reminder of the importance of documenting your healthcare preferences through instruments like a health and welfare LPA or an advance directive (also known as a ‘living will’).

What is a health and welfare LPA?

A health and welfare lasting power of attorney is a legal document that allows you to appoint one or more people to make decisions about your health and personal welfare if you lose the mental capacity to do so. These decisions can include ones about your medical treatment, living arrangements, and daily care.

Unlike a property and financial affairs LPA, a health and welfare LPA can only ever come into effect if you are deemed to be unable to make decisions for yourself, ensuring your preferences are respected at critical moments.

What is the difference between an LPA and an advance directive?

In contrast to an advance directive, an LPA allows your appointed attorney(s) to make a range of healthcare and personal welfare decisions on your behalf, rather than simply setting out specific treatment preferences in advance. An advance directive (also known as a living will) is a legally binding document that enables you to refuse specific medical treatments in certain circumstances, but it does not empower anyone to make broader decisions about your care. Having both an advance directive and a health and welfare LPA can ensure that your wishes are clearly documented and that trusted individuals can act on your behalf if needed.

Why it is important to document your wishes

Knowing that you are seriously ill will be upsetting enough for your family and loved ones, but it is particularly stressful for them to be faced with difficult decisions if you have not communicated your wishes.  In the absence of clear instructions, a dispute can arise among family members who have different personal views or recollections of things you have said in the past.

During the process of setting up a health and welfare LPA, you can consult your medical team about your prognosis and any key decisions which may need to be made in the future.  Your solicitor can then help you to document your preferences to provide clarity and to ensure that your chosen attorneys have the authority to act according to your instructions.

What decisions can be included in a Health and Welfare LPA?

Through a health and welfare LPA, you can outline your preferences regarding:

  • consent or refusal of life-sustaining treatment;
  • preferred care and living arrangements, such as home care or residential care;
  • dietary preferences, religious or cultural considerations; and
  • medical treatments you wish to avoid.

The scope of decisions included in your LPA can be tailored to reflect your values, beliefs, and priorities.

How we can help

We have extensive experience in drafting health and welfare LPAs and guiding clients through the process. Our team can:

  • explain the scope and benefits of an LPA;
  • help you decide who to appoint as attorneys and how to document your wishes;
  • draft your health and welfare LPA to ensure it accurately reflects your instructions and preferences; and
  • ensure your LPA is legally sound and registered with the Office of the Public Guardian.

For more information or to discuss setting up a health and welfare LPA, contact Lucy Brown in our private client team on 0191 297 0011 or via email at whitley.bay@kiddspoorlaw.com

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published