What a health and welfare attorney can decide
Guidance from Estate Advisory Group
Written and legally reviewed by Ramani Gill TEP, Solicitor and private client practitioner·Last reviewed 13 August 2026
More than most families expect about care and living arrangements, and less than they expect about money.
You can decide
- Where the donor lives, including a move into a care home or in with family.
- Consent to or refusal of medical treatment, subject to the life-sustaining treatment option.
- The care package, care provider and daily routine.
- Diet, dress, personal care and contact with other people.
You cannot decide
- Anything financial — that needs a property and financial affairs LPA, including paying care fees.
- Anything while the donor still has capacity to decide it themselves.
- Anything the LPA's instructions exclude.
- Detaining the donor against their will, or consenting to treatment refused by a valid advance decision.
The capacity threshold
A health LPA only works when capacity is lost
Unlike a financial LPA, a health and welfare LPA can never be used while the donor can make the decision themselves — even with the donor's agreement. See mental capacity explained.
A worked example
Consider Malcolm, whose daughter Anne holds a registered health and welfare LPA. After a stroke, Malcolm can still tell Anne clearly that he wants tea rather than coffee and that he does not want a particular carer back in the house — those are decisions he retains, and Anne must respect them even though she holds the LPA. What Anne can decide, because a mental capacity assessment shows Malcolm cannot weigh up the information involved, is whether he should move from hospital into a care home with nursing support, and which home to choose. The LPA does not switch on for every decision at once; it switches on decision by decision, only once capacity for that particular decision is genuinely gone.
Two attorneys, two forms
| Decision | Who has the authority |
|---|---|
| Selling the donor's house to fund care | Property and financial affairs attorney |
| Choosing which care home | Health and welfare attorney |
| Paying the care home invoice | Property and financial affairs attorney |
| Consenting to a hip replacement | Health and welfare attorney |
Families sometimes assume one LPA covers everything. It does not — see the difference between the two types of LPA if you are still deciding which forms to make.
Preferences and instructions
The LP1H form has a section for the donor's preferences (things they would like, which are not binding but guide the attorney) and instructions (things the attorney must do, or must not do, which are legally binding). A donor might write a preference that they would like to remain in their own home for as long as reasonably possible, and an instruction that a named person should never be responsible for their personal care. Attorneys should re-read this section before making a significant welfare decision — it often resolves disagreements between siblings acting jointly, because it points back to what the donor actually asked for rather than what each attorney assumes is best. See preferences and instructions for how to word these sections when the LPA is made.
Best interests when the donor cannot say
- Consider the donor's past wishes, values and any written statement they made while they had capacity.
- Consult anyone named in the LPA, plus close family and carers who know the donor well.
- Choose the option that is least restrictive of the donor's rights and freedom of action.
- Never decide based on the donor's age, appearance or condition alone — that is unlawful discrimination under the Mental Capacity Act 2005.
This best interests test, set out in the Mental Capacity Act 2005, applies to every welfare decision an attorney makes once capacity is lost. It is not simply what the attorney would choose for themselves in the donor's position — it is what the evidence suggests the donor would have wanted.
Common questions
Can I see the donor's medical records?
Yes, where the information is relevant to decisions you are making as attorney.
Can a care home refuse to accept my decision?
It should not, once you show a registered LPA covering the decision. If there is a genuine best-interests dispute, the Court of Protection decides.
Do I need both types of LPA to look after a parent properly?
Most families find they need both, since welfare and money decisions come up together, especially around care.
Can the donor overrule me while they still have capacity?
Yes, always. Your authority as attorney simply has not begun for any decision the donor can still make themselves.
What happens if two attorneys disagree about a welfare decision?
If they must act jointly, they need to reach agreement, taking advice if necessary; a persistent deadlock over a significant decision can be referred to the Court of Protection.
Can an attorney be overruled by a doctor?
Only if the attorney's decision falls outside their authority or is not in the donor's best interests; genuine disagreements about best interests can go to the Court of Protection.
Read next
Where this fits
This page is part of Health and care decisions. The pages below take it further.
- Health & Welfare LPA
The LP1H: care, treatment decisions and life-sustaining treatment.
- Make an LPA online
The whole journey end to end: questions, documents, signing and registration.
Review and sources
Reviewed by Ramani Gill TEP, Solicitor and private client practitioner. Last reviewed 13 August 2026. We recheck fees, forms and Office of the Public Guardian guidance whenever they change — see our editorial policy.
Official sources
Most people make both LPAs
Property & Financial Affairs and Health & Welfare together cost £79 instead of £98 separately.
The Office of the Public Guardian charges a separate £92 to register each LPA.
This is general information about how Lasting Powers of Attorney work in England and Wales. It is not legal advice about your situation. What we do and do not do.
Published by Estate Advisory Group