How to ensure that the donor’s wishes are respected
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. 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 Sallyann Short in our Wills, Trusts and Probate team on 01480 411224 or via email at [email protected].
Sallyann Short, Partner
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