Category: Lasting Powers of Attorney
You may already have thought about your bank accounts, your house and your Will. But who would decide where you live if you could no longer manage at home? Who would speak to doctors about medical treatment? Who would make sure your daily care reflected your wishes?
Many people assume their spouse, children or other close relatives will automatically step in. They will not necessarily have that legal authority.
A health and welfare Lasting Power of Attorney (LPA) lets you choose who should make important decisions about your care and medical treatment if you lose the mental capacity to make them yourself. Without one, your family may face uncertainty, lengthy legal processes and an application to the Court of Protection at an already distressing time.
“Everybody should have an LPA!”- Oliver Saxon, Principal Solicitor
If you do nothing for three months
You may continue thinking that an LPA is something to deal with later. However, an accident, serious illness or sudden diagnosis can change your circumstances quickly. If you then lose mental capacity, you may no longer be able to make the LPA yourself.
Your family could be left asking doctors and care providers what they are allowed to do. They may know what you would have wanted, but that does not always give them legal authority to make decisions on your behalf.
If you do nothing for six months
Your loved ones may need to begin dealing with difficult decisions about hospital treatment, care arrangements or where you should live without a clear legal framework.
If there is disagreement within the family, the situation can become even more painful. Different relatives may have different views about your best interests, and disagreement can result in distressing court battles or the need for specialist dispute resolution.
If you do nothing for twelve months
If you still do not have a health and welfare LPA and you lack capacity, your family cannot simply create one for you retrospectively. They may need to apply to the Court of Protection for authority.
That route can be slower, more expensive and more complicated than making an LPA in advance. It can also place a heavy administrative and emotional burden on the people you hoped would be able to help.
Planning ahead is not morbid. It is protective.
The two types of Lasting Powers of Attorney
There are two separate types of LPA in England and Wales.
1. Property and financial affairs LPA
This allows your chosen attorneys to deal with financial matters on your behalf. Depending on the terms of the document, they may be able to:
- Manage your bank accounts and pay bills
- Deal with benefits, pensions and investments
- Manage your property
- Buy or sell property where appropriate
- Arrange payment for care and household expenses
A property and financial affairs LPA is important, but it does not cover every decision affecting your personal welfare.
2. Health and welfare LPA
This covers personal decisions about your care, medical treatment and day-to-day life. It is the LPA that many people never get round to making because they focus first on money and property.
A property and financial affairs LPA alone is not enough if you want someone you trust to make welfare decisions for you.
What can a health and welfare attorney decide?
A health and welfare attorney can make decisions only when you lack the mental capacity to make the particular decision yourself. If you have capacity, your wishes and decisions remain paramount.
Subject to the terms of your LPA, your attorney may be able to make decisions about:
- Where you should live, including whether you should move into a care home
- The care and support you receive
- Your daily routine
- What you eat and drink
- What you wear
- Who you see and communicate with
- Your social activities
- The medical treatment you receive
- Whether you should take part in particular healthcare arrangements
- Life-sustaining treatment, but only if you have expressly given your attorney that authority
Your attorney must act in your best interests. They must follow any instructions or preferences included in the LPA and support you to make your own decisions wherever possible.
They cannot simply take control of your life because you have appointed them. The LPA gives them authority within a defined legal framework, not an unrestricted right to do whatever they choose.
What can a health and welfare attorney not do?
Your attorney cannot override you while you have capacity to make the decision in question.
They must not:
- Use their position to benefit themselves
- Ignore your known wishes and values
- Make decisions outside the authority given by the LPA
- Treat your preferences as irrelevant
- Use the LPA before it has been registered
- Make financial decisions under a health and welfare LPA
If you want someone to manage your finances, you normally need a separate property and financial affairs LPA.
A health and welfare attorney also cannot demand that healthcare professionals provide treatment that is not clinically appropriate. Medical professionals continue to have their own professional and legal responsibilities. Your attorney’s role is to participate in the decision-making process on your behalf, in accordance with your best interests and the scope of the LPA.
Why your family cannot simply take over
A common myth is that your next of kin automatically has the right to make decisions for you.
That is not generally correct. Being your spouse, civil partner, child or closest relative does not automatically make someone your legal decision-maker.
If you lose capacity without a registered health and welfare LPA, healthcare professionals will still make necessary decisions about your treatment and care. They should consult those close to you where appropriate, but your relatives may not have the final legal authority they assumed they would have.
If there is a serious disagreement, or a particular decision requires court involvement, the Court of Protection may become involved.
The Court of Protection route can be difficult
When someone lacks capacity and has not made an LPA, a relative may need to apply to become a deputy or seek a specific decision from the Court of Protection.
That process may involve:
- Detailed forms and supporting evidence
- Medical or professional assessments
- Application fees and legal costs
- Delays while the application is considered
- Ongoing reporting and administrative obligations
- Family disagreement about who should act
- Continued uncertainty about personal welfare decisions
A deputyship application can be especially difficult when the family is already dealing with hospitalisation, dementia, a serious accident or a move into residential care.
Making an LPA in advance gives you control over who you trust. A Court of Protection application asks the court to decide what should happen after the crisis has already occurred.
The classic paper LPA process
You must make your health and welfare LPA while you still have the mental capacity to understand what you are signing and the authority you are giving.
The classic paper process involves several important stages.
1. Choose your attorney or attorneys
You should choose people you trust to act calmly, responsibly and in your best interests. This might be a family member, close friend or professional attorney.
You should also think about whether attorneys will act jointly, meaning they must agree on decisions, or jointly and severally, meaning they can act independently.
2. Complete the paper LPA form carefully
The form records your details, your attorneys’ details, and any instructions or preferences you want to include.
Small errors can create delays or complications during registration. This is one reason many people ask lasting power of attorney solicitors or an LPA solicitor to help them ask the right questions before signing.
3. Sign and witness the document
You must sign the document in the correct order. Your signature must be witnessed, and your attorneys must also sign and have their signatures witnessed.
Everyone must sign the same original paper document. A certificate provider must also sign to confirm that you understand what you are doing and are not being pressured into making the LPA.
A certificate provider may be someone who knows you well enough to confirm your understanding, or an appropriate professional.
4. Register the LPA with the Office of the Public Guardian
The signed original is sent to the Office of the Public Guardian (OPG) for registration. Relevant people may need to be notified, giving them an opportunity to raise concerns.
The LPA cannot be used before registration. Even if everyone has signed it, your attorney has no authority to act under it until the OPG has registered it.
The current registration fee is £92 per LPA, although fee reductions or exemptions may be available in some circumstances. You should check the latest position before sending the application.
Do not transfer your home to avoid care fees
Families sometimes consider transferring a property or giving away savings to reduce the amount that may be taken into account when care fees are assessed.
This can create serious problems.
If a local authority decides that you deliberately deprived yourself of assets to avoid or reduce care costs, it may treat you as still owning those assets when assessing your contribution. In some circumstances, it may also seek to recover money from the person who received the asset.
An attorney cannot simply give away your property or substantial assets because they believe it will reduce future care fees. Attorneys must act within their legal authority and in your best interests. Gifts are subject to strict limits, and major transfers require careful legal advice.
Do not sign over your home or transfer money as a shortcut. The consequences can include care-fee disputes, financial loss and scrutiny by the Office of the Public Guardian or the Court of Protection.
How an advance decision differs from a health and welfare LPA
An advance decision to refuse treatment is not the same as a health and welfare LPA.
An advance decision allows you to refuse specific medical treatments in advance, in case you later lack capacity. It is focused on treatment you do not want in particular circumstances.
A health and welfare LPA appoints someone you trust to make wider welfare decisions when you cannot make them yourself. Those decisions may include where you live, your daily care, who you see and the treatment you receive.
You may need one, the other or both, depending on your wishes. However, the documents should be considered together. If they conflict, the legal position can be complicated, particularly where life-sustaining treatment is involved.
The value of making the decision now
A health and welfare LPA gives you an opportunity to:
- Choose your own decision-maker
- Explain your values and preferences
- Reduce pressure on your family
- Help doctors and care professionals understand your wishes
- Avoid unnecessary Court of Protection proceedings
- Protect your independence as far as possible
- Reduce the risk of family disagreement
- Provide reassurance during a difficult period
This is not about expecting the worst. It is about giving your family a clear route forward if the unexpected happens.
Our team can help you prepare an LPA that reflects your circumstances and works alongside your Will and wider estate planning. If you also need Will writing services, advice from a private client solicitor, or support from a probate solicitor, we can help you consider the full picture.
At Tyto Law Solicitors, we offer appointments at your home, office or online, during weekdays, evenings and weekends. We work with clients in Lincoln, Crowle and throughout England and Wales.
The value is in making your wishes clear while you still can. It is in reducing the risk of a lengthy legal process later. It is in giving your loved ones the confidence to act when they need to.
Our initial consultation fee is a fixed £175 for applicable matters. This fee does not apply to Wills, LPAs or Probate. We will explain the likely work and costs clearly before proceeding.
Do not wait until your family is standing outside a hospital room asking, “Who is allowed to decide?”
Have a chat with us now and put your mind at rest.
Contact Tyto Law Solicitors or call our Crowle office on 01724 642842 or our Lincoln office on 01522 243467.
About the author
Oliver Saxon, Principal Solicitor
Oliver Saxon is the Principal Solicitor at Tyto Law Solicitors, supporting individuals and families with clear, practical legal advice. He advises on Wills, Lasting Powers of Attorney, Probate, dispute resolution and other personal legal matters.
Tyto Law Solicitors serves clients from its offices in Crowle, North Lincolnshire, and Lincoln, with flexible appointments available to suit you.