If you’ve been asked to act as an attorney under a Health and Welfare Lasting Power of Attorney (LPA), you might be feeling honoured, but also a little unsure. It’s a big responsibility, and it can be difficult to know exactly what the role involves, especially when it concerns someone you care about.
I work with many people in this position, and one thing I always say is this: you don’t have to figure it all out on your own. As one of the experienced power of attorney solicitors Essex families turn to, I’m here to make the process feel more manageable.
This guide will help you understand what it means to act as an attorney under a Health and Welfare LPA, including what you can and cannot do, your legal duties, and how to make decisions in your loved one’s best interests.
What Is A Health And Welfare LPA?
A Lasting Power of Attorney is a legal document that enables an individual (the donor) to appoint one or more trusted persons (attorneys) to make decisions on their behalf if they lose mental capacity in the future.
There are two types:
* Property and Financial Affairs LPA
* Health and Welfare LPA
This guide focuses on the Health and Welfare LPA. This includes decisions such as where the donor resides, the type of care they receive, and, in some cases, decisions regarding life-sustaining treatment.
If you’re unsure which type of LPA applies in your situation, I can help you check and understand the documents. As one of the power of attorney solicitors Essex clients often turn to, I regularly support people with both types.
What Can I Do As A Health And Welfare Attorney?
You’ll only be able to act if:
* The LPA has been registered with the Office of the Public Guardian (OPG)
* The donor no longer has the capacity to make a particular decision themselves
Once that’s the case, your responsibilities may include:
* Deciding where the person lives and who provides their care
* Arranging appointments with doctors, dentists or opticians
* Making decisions about meals, clothing or daily routines
* Agreeing or refusing medical treatment
* In some cases, making decisions about life-sustaining treatment
When clients first become attorneys, they’re often surprised by how wide-ranging the role is. I take time to explain exactly what’s involved so they feel confident in their decisions.
What Can’t I Do?
A Health and Welfare LPA doesn’t give you the authority to:
* Manage the donor’s finances (unless you’re also named in a separate Property and Financial Affairs LPA)
* Override a valid advance decision made after the LPA
* Force a medical professional to give or withhold treatment that isn’t in the donor’s best interests
If you’re dealing with someone’s estate as well as acting under an LPA, I can also help in my role as a probate solicitor to make sure everything is handled smoothly and in line with your loved one’s wishes.
How Do I Know If Someone Lacks Capacity?
Before you act, you must be sure the donor lacks capacity to make the decision in question. Capacity can fluctuate, so they might be able to make some decisions but not others.
Under the Mental Capacity Act 2005, you must assume a person has capacity unless proven otherwise. You should support them as much as possible to make their own decisions before stepping in.
Ask yourself:
* Do they understand the decision they need to make?
* Can they retain and weigh up the information?
* Can they communicate their decision (in any way)?
If you’re unsure, you can ask their GP or a specialist for a capacity assessment.
Acting In The Donor’s Best Interests
Every decision you make must be in the donor’s best interests. This means:
* Considering their past and present wishes
* Taking into account any beliefs or values they held
* Consulting with family or friends involved in their care (where appropriate)
* Avoiding assumptions based on age, condition or behaviour
As one of the power of attorney solicitors Essex clients rely on, I help attorneys feel confident they’re making thoughtful, legally sound decisions that genuinely reflect the person’s wishes.
Life-Sustaining Treatment
You’ll need to check section 5 of the LPA to see if the donor gave you the power to consent to or refuse life-sustaining treatment.
If they selected Option A, you can make that decision on their behalf. If not, the final decision lies with the doctors, although they must still consult you and consider your views.
It’s also important to understand that the doctor decides what counts as life-sustaining in each situation. For example, antibiotics might be routine for one patient but life-saving for someone more vulnerable.
I regularly advise attorneys on how to approach these difficult conversations and what their legal boundaries are.
What About Advance Decisions?
An advance decision (also known as a living will) is a statement someone makes when they have capacity to refuse certain medical treatments in future.
If the advance decision was made before the Health and Welfare LPA, the LPA usually takes precedence.
If it was made after the LPA, and it’s valid and applicable, it overrides your authority.
Even where an advance decision is no longer binding, it’s still good practice to consider it as part of the donor’s wishes.
Acting With Other Attorneys
If more than one attorney has been appointed, the LPA will set out how decisions must be made:
* Jointly: all attorneys must agree on everything
* Jointly and severally: attorneys can act together or independently
* Jointly for some decisions, jointly and severally for others: this will be detailed in the form
You should also know what happens if another attorney is unable or unwilling to act. In some cases, the LPA may cease to be valid unless replacement attorneys are named.
I’m often asked to help interpret the LPA wording and provide guidance on how attorneys should work together. As one of the trusted power of attorney solicitors Essex, I regularly support families through these arrangements.
What If There’s A Disagreement?
If the donor still has capacity, their decision is final. You cannot override it.
If they lack capacity, you must make a best interests decision. But sometimes disagreements arise between:
* Attorneys
* Attorneys and family members
* Attorneys and care professionals
Try to resolve things amicably and keep a clear written record of how decisions are made. If needed, you can contact the Office of the Public Guardian (OPG) for advice, or in serious cases, an application can be made to the Court of Protection.
What Records Should I Keep?
You should keep notes of:
* Key decisions and why you made them
* Any advice you received
* Who you consulted
* Any expenses you claimed
You don’t need to keep detailed daily records, but being able to show your reasoning helps if your decisions are ever questioned.
Can I Be Paid?
You can only charge for your time if the LPA says so in section 7. Most family members act unpaid, but you are entitled to claim reasonable out-of-pocket expenses.
If you’re unsure what counts as reasonable, I’m happy to advise in my capacity as one of the power of attorney solicitors Essex clients regularly consult.
When Does The LPA End?
The Health and Welfare LPA ends automatically when:
* The donor dies
* You, as an attorney, choose to step down
* You become bankrupt
* The donor revokes the LPA while they still have capacity
If you’re the donor’s spouse or civil partner and you divorce or separate, your appointment may also end unless the LPA states otherwise.
Ready To Take The Next Step?
Being asked to act as an attorney shows how much your loved one trusts you. But that doesn’t mean you have to have all the answers right away.
If you’d like clear, friendly advice, whether you’re already acting under an LPA or thinking about putting one in place, please do get in touch.
I’m one of the approachable power of attorney solicitors Essex clients turn to when they want guidance delivered with warmth, clarity and care.
I also support many families after a loved one has passed away, offering clear and compassionate advice on estate administration. If you’re looking for experienced probate solicitors Colchester based, I’d be very happy to help.