Health & Welfare Attorneys: Why Their Voice Must Be Central in Medical Decisions

When a person (the donor) creates a Health and Welfare Lasting Power of Attorney (LPA), they appoint trusted people to make or help make decisions about care and treatment if they lose capacity. Those attorneys are not observers, they are required to make decisions on behalf of the donor in accordance with the scope of the LPA. Decisions may include consenting to or refusing medical treatment, engagement with palliative care, day‑to‑day welfare, living arrangements and, where expressly granted, life‑sustaining treatment. Their role is to reflect the donor’s values, beliefs and past wishes and to work collaboratively with clinical teams. Most often, the donor will have provided some insight as to how decisions should be made prior to their loss of capacity.

Under the Mental Capacity Act 2005 (MCA), anyone making a best‑interests decision must, so far as practicable, consult the attorney about what would be in the person’s best interests, and must consider the person’s past and present wishes, feelings, beliefs and values. Failing to do so risks a decision being found unlawful, even where clinicians believe they are acting in accordance with the person’s best interests.

The Court of Protection’s recent decision in Cwm Taf Morgannwg University Health Board v RW (by the OS) & Evans[1] serves as a clear reminder that attorneys cannot be bypassed. This case revolved around RW, a 72‑year‑old man with advanced mixed dementia, who was admitted to hospital on 24 December 2025. By 29 December 2025, the hospital knew that Ms Evans was RW’s registered LPA for RW’s Health and Welfare, however they failed to contact her until 13–15 January 2026, after significant decisions had already been made regarding RW’s treatment.

On review, the Court of Protection noted that “very significant decisions” were made without consulting RW which formed a clear breach of the MCA. The Health Board accepted and apologised for the communication failures and accordingly, did not oppose a declaration that there had been non‑compliance with the MCA.

Once the Attorney was meaningfully involved, the parties were able to agree a plan forward with regards to RW’s care. Sadly, RW died on 27 January 2026. By the time of the hearing therefore, the ongoing decisions regarding RW’s Health and Welfare were no longer a matter for further directions.

In concluding, the Court of Protection ordered disclosure of records to the regulators and departed from the usual “no‑costs” rule in Health and Welfare cases, requiring the Health Board to pay the attorney’s costs. The Court noted that proceedings were necessary to restore appropriate consultation and treatment planning.

This case demonstrates that Health and Welfare Attorneys exist to preserve a donor’s autonomy when they cannot speak for themselves. The Court of Protection has made it plain: consult them, involve them and document it. Anything less risks unlawful decision‑making and undermines the very purpose of the LPA.

[1] [2026] EWCOP 10