Why a health and welfare Lasting Power of Attorney (LPA) is just as important as one for finance and property

Importantly, your appointed attorneys can only act if you lack mental capacity — but when that point is reached, having the right people legally empowered to speak for you can make a profound difference. A properly drafted health and welfare LPA ensures that your wishes, values and preferences are not only known but must be taken into account by medical professionals and care providers and that your chosen attorneys are fully involved in and consulted about all health and welfare decisions.

Two recent 2026 Court of Protection cases have shed light on and reinforced how significant this protection can be.

Firstly, in Cwm Taf Morgannwg University Health Board v RW & Anor [2026] EWCOP 10 (T3), a hospital did not consult with the donor’s health and welfare attorneys concerning decisions involving life sustaining treatment and thereby failed to take account of the donor’s wishes and feelings in contravention of the Mental Capacity Act 2005 (MCA)’s rules about consulting such attorneys. This unlawful action resulted in a costs order against the hospital and changes in the way that the donor’s care and treatment was carried out. It is an important lesson that health and welfare attorneys should remember and remind medical staff and hospitals as to their obligations here- and that doing so helps ensure the individual’s own wishes and feelings are properly respected at a critical time.

The second case, Re HDEB [2026] EWCOP 12 (T2), highlights the uncertainty that can arise when no health and welfare LPA exists. This case concerned an application by financial deputies (the parents of HDEB, a young adult)) to the Court of Protection to be appointed as his health and welfare deputies. The judge turned down the application.  He stated that “I do not find it to be in HDEB’s best interests to appoint JB and SB as PWDs (personal welfare deputies) for HDEB.  I find that collaborative decision making has worked in his best interests. I consider that if there are disagreements over major decisions, such as residence, the Court of Protection should resolve those disagreements rather than PWDs.  I consider that the appointment of PWDs would be an unnecessary infringement of HDEB’s right to autonomy as a 22-year-old adult”.

The court found that because there had been good collaborative working between the parents and the statutory bodies involved in his care up to this point, that it was unnecessary to appoint them as health and welfare deputies. Any such decisions, for example, as to change of residence or care could be made by a further application to the court. It appears that this does somewhat undermine the protection for the patient and in other circumstances statutory bodies may not seek such a collaborative approach especially where ongoing decision making is required.  The decision is going to be appealed

We recommend that clients have both financial and health LPAs in place to ensure that not only have they, rather than a court, decided who their decision makers will be, but also that those appointed will respect and observe particular wishes and feelings about care and treatment. If you require assistance with preparing a new LPA for health and welfare, please contact Ann Stanyer, Victoria Mahon or your usual Wedlake Bell adviser.

This article is for general information purposes only and does not constitute legal advice or a comprehensive statement of the law. Specific legal advice should always be sought in relation to individual circumstances.

Meet the team:

1. 

   • Victoria Mahon

   • Partner
   • Private Client

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2. 

   • Ann Stanyer

   • Consultant
   • Private Client

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