Can an Attorney Choose Private Healthcare?
A Health and Welfare attorney can opt for private treatment — but the decision must genuinely reflect the donor’s preferences and best interests.
Written by James Tyrrell · Reviewed by Anthony Dalton · Last reviewed
For someone who has always used private healthcare, the thought of losing that choice when they can no longer speak for themselves is a genuine concern. The good news is that a Health and Welfare LPA can give an attorney the authority to continue private treatment arrangements — but it requires both the right LPA structure and a financial attorney who can manage the practicalities.
At a glance
- A Health and Welfare attorney can consent to private medical treatment if it is in the donor’s best interests.
- A Property and Financial Affairs attorney can manage and claim on existing private health insurance policies.
- The decision must reflect what the donor would have wanted, not simply the attorney’s own preference.
- Recording private healthcare preferences in the LPA strengthens the attorney’s mandate.
What Authority Does a Health and Welfare Attorney Have Over Healthcare Choices?
A Health and Welfare LPA gives an attorney the power to consent to or refuse medical treatment on the donor’s behalf when they lack capacity. This includes choosing between treatment options — and in principle, between NHS and private treatment.
The key constraint is the best interests duty. An attorney cannot simply choose private healthcare because they personally believe it is better, or because it is more convenient. They must be able to demonstrate that the choice reflects what the donor would have wanted and what is genuinely in their best interests.
When Choosing Private Healthcare Is in the Donor’s Best Interests
In practice, choosing private healthcare is most clearly justified when:
- The donor had private health insurance in place and clearly intended to use it
- The donor expressed strong preferences for private care during their life
- The donor’s condition requires specialist treatment where NHS waits are significantly longer
- The donor has the financial resources to fund private treatment without compromising long-term welfare
- Preferences or instructions are recorded in the LPA itself
In situations like Margaret’s — someone who had a BUPA policy for 30 years and always had private referrals — the attorney choosing to maintain that approach is both defensible and clearly in the spirit of what she would have wanted.
The Financial Attorney’s Role in Private Healthcare
Choosing private healthcare is a welfare decision, but paying for it is a financial one. This is where both types of LPA need to work together. A Property and Financial Affairs attorney can:
- Continue paying private health insurance premiums from the donor’s accounts
- Claim on existing policies when treatment is needed
- Manage self-pay arrangements where the donor funds treatment directly
- Assess whether insurance coverage remains appropriate given the donor’s health needs
Health and Welfare attorney decides
Whether to proceed with private treatment, which provider to use, which specialist to see, and whether to go private or NHS for a specific procedure.
Financial Affairs attorney handles
Paying premiums, making insurance claims, managing self-pay budgets, and ensuring the financial sustainability of ongoing private healthcare arrangements.
When Private Healthcare May Not Be Appropriate
There are situations where an attorney would need to think carefully before prioritising private treatment:
- The donor’s insurance policy has exclusions that make it unsuitable for their current condition
- The donor’s assets are limited and private treatment would compromise their long-term care funding
- NHS treatment of equivalent quality is available and the donor never expressed strong views about going private
- The private provider cannot offer the level of specialised care the donor needs
Attorneys must act in the donor’s genuine best interests — which includes their long-term financial wellbeing, not just immediate treatment preferences. Depleting savings on private care that leaves the donor without funds for essential future care would be difficult to justify.
Key point: If you have strong preferences about private healthcare, record them in the preferences section of your LPA. A clear written statement — “I wish to continue using private healthcare through my existing insurer wherever possible” — gives your attorney a firm basis for their decisions and protects them from challenge.
Protecting Private Healthcare Preferences in Your LPA
The preferences section of a Health and Welfare LPA is the ideal place to record your wishes about private healthcare. You could include:
- A statement that you prefer private treatment where it is available and affordable
- Details of your existing private health insurer and policy number
- The name of your preferred private GP or specialist
- Any private hospitals you have a preference for
- Instructions about self-pay treatment in specific circumstances
Recording practical details — not just general wishes — gives your attorney everything they need to continue your healthcare arrangements without having to search for information at a stressful time.
Key Takeaways
- Health and Welfare authority — a Health and Welfare attorney can consent to private treatment if it is in the donor’s best interests and reflects their known preferences.
- Financial attorney needed too — a Property and Financial Affairs attorney manages private health insurance, premiums, and self-pay arrangements.
- Best interests always apply — the attorney must demonstrate the choice reflects what the donor would have wanted, not just what the attorney prefers.
- Record preferences in the LPA — a clear written statement in the LPA strengthens the attorney’s mandate and protects their decisions from challenge.
- Financial sustainability matters — private treatment must be affordable without jeopardising long-term care funding.
Common Questions About Attorneys and Private Healthcare
Can a Health and Welfare attorney choose private treatment for the donor?
Yes, in principle. A Health and Welfare attorney can consent to private medical treatment on the donor’s behalf if it is in their best interests. The financial attorney also needs to authorise paying for it, and the decision must reflect what the donor would have wanted.
Can an attorney use the donor’s private health insurance?
Yes. A Property and Financial Affairs attorney can manage and claim on the donor’s existing private health insurance policy. The Health and Welfare attorney can then consent to the private treatment the insurer approves. Both attorneys need to coordinate on this.
Can an attorney override the donor’s existing private health insurance arrangements?
An attorney should not cancel or change existing healthcare arrangements without good reason, as this could be challenged as acting against the donor’s best interests. If the attorney genuinely believes a change is needed, they should document their reasoning carefully.
What if the donor’s funds run low — must the attorney maintain private healthcare?
Attorneys must manage the donor’s finances responsibly. If resources are limited, continuing expensive private healthcare could deplete funds needed for essential long-term care. The attorney must balance current healthcare preferences with long-term financial sustainability.
This guide was last reviewed and updated on . Information is based on current legislation and OPG guidance for England and Wales.
Official Guidance
Relevant government resources
Give Your Family Peace of Mind
Choosing the right attorney now means your loved ones won’t face difficult decisions alone.
