Who Decides If You Don’t Have a Health and Welfare LPA?
Your family cannot simply step in. Without an LPA, health decisions follow a different process entirely — and your wishes may carry less weight than you expect.
Written by James Tyrrell · Reviewed by Anthony Dalton · Last reviewed
Most people assume their spouse, children, or closest family members will take charge of health decisions if they cannot. That assumption is wrong. Without a Health and Welfare LPA, no individual family member has any formal legal authority. Instead, doctors make decisions under a framework created by the Mental Capacity Act 2005 — with family consulted but not in control.
At a glance
- Without a Health and Welfare LPA, no family member has legal authority over health and care decisions.
- Clinicians make decisions in the person’s best interests under the Mental Capacity Act 2005.
- Family are consulted as part of the best interests process but cannot override clinical judgement.
- Serious contested decisions may require a Court of Protection application, which is expensive and slow.
The ‘Next of Kin’ Myth
Being someone’s next of kin is not a legal status in England and Wales. Hospitals use the term informally to mean the closest relative they will contact in an emergency, but it conveys no formal authority. A next of kin cannot legally consent to or refuse medical treatment, agree to care home placement, or make binding decisions about medication or surgery.
This surprises many families. A grown-up child who has visited their parent in hospital every day, or a spouse who has been married for 40 years, may discover they have no more formal authority than a medical team has decided to give them informally.
How the Best Interests Process Works
When someone loses mental capacity and has no Health and Welfare LPA, the legal framework for decision-making is the Mental Capacity Act’s best interests process. Clinicians must:
Assess capacity
Confirm that the person genuinely lacks capacity to make a particular decision at a particular time. Capacity is always decision-specific and time-specific.
Consider past wishes
Look at any written statements, advance decisions, or documented preferences the person made when they had capacity.
Consult people who know them
Seek the views of family, friends, carers, and anyone else with an interest in the person’s welfare. Their input feeds into the best interests decision but does not override clinical judgement.
Choose the least restrictive option
Where possible, opt for the course of action that restricts the person’s rights and freedom the least, while still meeting their needs.
When Decisions Go to the Court of Protection
For most routine treatment decisions — medication, wound care, standard procedures — the clinical team makes appropriate best interests decisions without needing a court order. But for significant or contested decisions, the Court of Protection may need to be involved.
Examples of decisions that may require a court ruling include:
- Serious, irreversible medical procedures where family disagree with the clinical team
- Withdrawal of life-sustaining treatment (in many cases)
- Care home placement where the person resists or disputes exist between family members
- Decisions with major financial or welfare consequences
Court proceedings are slow, emotionally draining, and expensive. A family trying to help a loved one may find themselves in a legal process that takes months, costs thousands of pounds, and still results in a decision they did not want. An LPA avoids this entirely by giving named individuals clear authority in advance.
Key point: The Court of Protection is not a backup plan — it’s a last resort. It was designed for situations where no advance planning exists. Having a Health and Welfare LPA means the person you trust most makes decisions, not a judge who has never met you.
What Family Members Can Do Without an LPA
Without a Health and Welfare LPA, family members are not powerless — but their influence is informal rather than authoritative. They can:
- Share information about the person’s past wishes and values with the clinical team
- Attend care planning meetings and provide input
- Raise concerns if they believe decisions are not in the person’s best interests
- Apply for a deputyship order from the Court of Protection (a lengthy, costly process)
- Request that an Independent Mental Capacity Advocate (IMCA) is appointed in certain situations
Deputyship as a Last Resort
If someone loses capacity without an LPA, a family member can apply to become a court-appointed deputy. A personal welfare deputy can make health and care decisions — but the process takes months, costs over £1,000, and requires ongoing annual reporting to the Office of the Public Guardian. It is a far more burdensome arrangement than a simple LPA created in advance. See our guide on LPA vs Deputyship for a full comparison.
Key Takeaways
- No automatic family authority — without a Health and Welfare LPA, no family member has legal authority over health and care decisions.
- Doctors decide — clinical teams make best interests decisions under the Mental Capacity Act, consulting family but not bound by their wishes.
- Court of Protection — serious or disputed decisions may need a court ruling, which is expensive and time-consuming.
- Deputyship is the fallback — a family member can apply to be a court-appointed deputy, but it takes months, costs over £1,000, and involves ongoing supervision.
- An LPA prevents all of this — creating a Health and Welfare LPA while you have capacity costs £92 and takes a few weeks, avoiding all of these complications.
Common Questions About Health Decisions Without an LPA
Can my family make health decisions for me if I don’t have an LPA?
No. Family members have no automatic legal authority to make health or care decisions. Without a Health and Welfare LPA, doctors make decisions based on best interests under the Mental Capacity Act, consulting family as part of that process but not bound by their views.
What is the best interests process when there is no LPA?
When someone lacks capacity and has no Health and Welfare LPA, clinicians must make decisions in their best interests. This involves consulting people who know the person well, considering their past wishes and values, and choosing the least restrictive appropriate option. Family views are considered but are not binding.
What happens if there is a serious health decision and no LPA?
For major decisions such as care home placement or withdrawal of life-sustaining treatment, the matter may be referred to the Court of Protection. This is costly and time-consuming, and the outcome may not reflect what the person would have wanted. A Health and Welfare LPA avoids this entirely.
Is next of kin the same as an LPA attorney for health decisions?
No. “Next of kin” is not a legal concept that grants formal authority over health decisions in England and Wales. Without an LPA, a next of kin can provide information and make the clinical team aware of the patient’s wishes, but they cannot make binding decisions.
This guide was last reviewed and updated on . Information is based on current legislation and OPG guidance for England and Wales.
Official Guidance
Government guidance on GOV.UK
Don’t Leave It to Chance
Without an LPA, your family could face months of court delays and thousands in legal fees.
