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Can Attorneys Make Medical Decisions?
Understanding when and how an attorney can make healthcare decisions on your behalf.
Written by James Tyrrell · Reviewed by Anthony Dalton · Last reviewed
A common misconception is that any Power of Attorney lets someone make medical decisions on your behalf. In reality, only a Health and Welfare Lasting Power of Attorney grants that authority. A Property and Financial Affairs LPA covers money and property — it gives an attorney no say in your healthcare whatsoever. There is also a crucial timing restriction: a Health and Welfare LPA can only be used once the donor has lost the mental capacity to make the relevant decision themselves.
At a glance
- Only a Health and Welfare LPA gives an attorney authority over medical decisions — a financial LPA does not
- A Health and Welfare LPA can only be used once the donor has lost mental capacity for the specific decision in question
- Life-sustaining treatment decisions require the donor to specifically opt in when creating the LPA
- Attorneys work alongside medical professionals — they cannot demand clinically inappropriate treatment
When Can a Health and Welfare Attorney Make Medical Decisions?
Unlike a Property and Financial Affairs LPA, which can be used while the donor still has capacity, a Health and Welfare LPA can only be used once the donor lacks the mental capacity to make the specific decision in question. Mental capacity is assessed on a decision-by-decision basis under the Mental Capacity Act 2005.
This means that even if a donor has dementia, they may still have capacity to make some healthcare decisions but not others. For example, they might be able to decide whether to take a painkiller but not be able to understand the implications of a complex surgical procedure. The attorney's authority only extends to those decisions the donor cannot make for themselves.
A doctor or healthcare professional will typically carry out a capacity assessment before accepting that an attorney can make a medical decision. This is not a one-off test — capacity can fluctuate, and each decision requires its own assessment.
What Medical Decisions Can an Attorney Make?
Under a Health and Welfare LPA, an attorney may make a wide range of healthcare decisions, including:
- Consenting to or refusing medical treatment — including surgery, medication, and therapy
- Choosing a care home or care provider — deciding where the donor should live and what type of care they receive
- Day-to-day care decisions — such as diet, clothing, daily routine, and personal hygiene
- Decisions about assessments — including community care assessments and NHS continuing healthcare assessments
- Decisions about who the donor has contact with — although this must always be in the donor's best interests
- Complaints about care — raising concerns about the standard of care being provided
Key point: An attorney cannot make decisions about medical treatment that the donor has the capacity to make themselves. The starting point is always to support the donor in making their own choices.
Life-Sustaining Treatment
One of the most significant decisions an attorney may face is whether to consent to or refuse life-sustaining treatment. This includes treatments such as ventilation, CPR, artificial nutrition and hydration, and certain medications without which the donor would die.
When creating a Health and Welfare LPA, the donor must specifically state whether they want their attorney to have the power to make decisions about life-sustaining treatment. There is a specific section in the LPA form for this. If the donor does not grant this authority, the attorney cannot refuse life-sustaining treatment on the donor's behalf — those decisions would instead fall to the treating doctors, guided by the donor's best interests.
If the donor does grant the attorney authority over life-sustaining treatment, the attorney must still act in the donor's best interests. They must consider the donor's previously expressed wishes, beliefs, and values. This is an enormous responsibility, and many donors choose to include written preferences in their LPA to guide their attorney's decision-making in these situations.
Working With Doctors and Healthcare Teams
An attorney does not make medical decisions in isolation. They work alongside the donor's doctors, nurses, and other healthcare professionals. The medical team provides clinical advice and explains the options available, while the attorney makes the final decision based on what they believe the donor would have wanted.
In practice, this is usually a collaborative process. The healthcare team will explain the diagnosis, the treatment options, and the likely outcomes. The attorney can ask questions, seek second opinions, and take time to consider the decision — unless it is an emergency requiring immediate action.
If the medical team disagrees with the attorney's decision, they can apply to the Court of Protection for a ruling. This is rare but can happen in cases where there is a genuine dispute about what is in the donor's best interests.
What Attorneys Cannot Do
Even with a Health and Welfare LPA, there are important limitations on an attorney's powers. For a comprehensive overview, see our guide on what attorneys are not allowed to do. In the medical context specifically:
- An attorney cannot consent to treatment for a mental disorder if the donor is detained under the Mental Health Act 1983 (certain treatments under that Act have their own consent framework)
- An attorney cannot demand a specific treatment that the medical team considers clinically inappropriate
- An attorney cannot refuse life-sustaining treatment unless the LPA specifically grants this power
- An attorney cannot make decisions that conflict with a valid and applicable advance decision to refuse treatment made by the donor
- An attorney cannot consent to certain research procedures on behalf of the donor
The Best Interests Duty
As with all decisions made under an LPA, an attorney making medical decisions must fulfil their duties as an attorney and act in the donor's best interests. The Mental Capacity Act 2005 sets out a checklist of factors that must be considered, including:
- The donor's past and present wishes and feelings
- The donor's beliefs and values
- Any other factors the donor would consider if they were able to
- The views of anyone the donor has asked to be consulted
- Whether the donor might regain capacity
Best interests is not simply a clinical judgment about what is medically optimal. It takes into account the whole person — their values, their quality of life, their dignity, and their previously expressed views. An attorney who knew the donor well is uniquely placed to ensure these personal factors are considered alongside the medical advice.
Tip: Talk to your chosen attorney about your healthcare wishes before you ever lose capacity. The more they understand your values and preferences, the better equipped they will be to make decisions that truly reflect what you would have wanted.
When you're ready to name your attorneys and create your LPA, our guided service makes the process straightforward. See pricing.
Key Takeaways
- You need the right type of LPA — a Property and Financial Affairs LPA covers money; a Health and Welfare LPA covers medical and care decisions. You need two separate LPAs if you want both.
- Capacity is assessed per decision — the donor may have capacity for some healthcare choices but not others; the attorney's authority only extends to decisions the donor cannot make themselves.
- Life-sustaining treatment is opt-in — the donor must specifically grant this power in the LPA form; without it, those decisions fall to the treating doctors.
- Best interests is the governing principle — every medical decision must follow the Section 4 checklist, including the donor's previously expressed wishes, beliefs, and values.
- Talk to your attorney now — the more your chosen attorney understands your healthcare wishes while you still have capacity, the better they can represent your interests later.
Answers to Questions We Get Asked
Can a financial LPA be used to make medical decisions?
No. Only a Health and Welfare LPA gives an attorney authority over medical and healthcare decisions. A Property and Financial Affairs LPA covers money and property matters only. If you want your attorney to handle both, you need to create two separate LPAs.
Can an attorney demand a specific medical treatment?
No. An attorney can consent to or refuse treatment, but they cannot demand a treatment that the medical team considers clinically inappropriate. The attorney works alongside doctors, who provide clinical advice, while the attorney makes the final decision based on the donor's best interests.
Does a Health and Welfare LPA automatically cover life-sustaining treatment decisions?
No. The donor must specifically opt in to give their attorney authority over life-sustaining treatment decisions. There is a dedicated section in the LPA form for this. If the donor does not grant this power, decisions about life-sustaining treatment fall to the treating doctors.
This guide was last reviewed and updated on . Information is based on current legislation and OPG guidance for England and Wales.
Official Guidance
Further reading from GOV.UK
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