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 Susan Owens of Borneo Martell Turner Coulston. ‘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.
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.
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.
- What if there is more than one attorney?
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.
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. .
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.
What if there is a disagreement?
In such emotionally charged circumstances, 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.
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 Susan Owens, head of our private client team on 01604 622101 or via email susan.owens@bmtclaw.co.uk
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.
