Quick summary
A health and welfare attorney can decide where the donor lives and what care they receive, once the donor lacks capacity for that decision. What the attorney cannot do is require the local authority to fund a particular package. This note sets out where the two systems meet, and where clients most often come unstuck.
Who this is for
Private client solicitors, will writers, financial advisers doing care fee planning, and deputies. It is written for professionals rather than families, and it assumes familiarity with the Mental Capacity Act 2005.
Which decisions sit with which instrument
Decision | Property and financial affairs LPA | Health and welfare LPA |
|---|---|---|
Paying care fees, managing income and capital | Yes | No |
Selling or letting the property to fund care | Yes | No |
Where the donor lives | No | Yes, once the donor lacks capacity |
Whether care is provided at home or in a care home | No | Yes |
Which provider delivers care, and the content of the care plan | No | Yes |
Consent to or refusal of treatment | No | Yes, if the instrument so provides |
Life-sustaining treatment | No | Only if the relevant section is completed |
The practical consequence is familiar: a client with only a property and financial affairs LPA can pay for care but cannot decide what it should be. In a contested discharge, that distinction becomes the whole issue.
Where the local authority’s assessment impacts things
An attorney’s authority determines what the donor does, subject to best interests and least restriction. It does not determine what the council pays for. Where a package is publicly funded, the local authority assesses eligible needs under the Care Act 2014 and sets a personal budget sufficient to meet them. An attorney can express preferences, and cannot require a more expensive service than the assessment supports.
Two routes usually resolve this in practice: a direct payment, which allows the attorney to commission a provider of choice and top up privately, or a self-funded arrangement alongside a council contribution. Our note on the care needs assessment sets out the process from the family’s side.
Where the client is self-funding, the attorney’s discretion is correspondingly wider, constrained by best interests and by what the estate can sustain.
The capital position, which drives most care fee planning
- Upper capital limit £23,250, lower £14,250 in England for 2026/27, with a tariff income of £1 a week per £250 between the two.
- The donor’s home is disregarded for care delivered at home. It is generally taken into account on a permanent move into residential care, subject to the statutory disregards, including where a spouse or qualifying relative remains in occupation.
- Deferred payment agreements remain available for residential care where the property is taken into account.
- NHS Continuing Healthcare is not means-tested. Where there is a primary health need, the entire package is NHS-funded, which changes the planning picture completely. See our note on Continuing Healthcare.
- Deprivation of assets is assessed by the local authority, and intention and timing are both relevant.
For clients weighing domiciliary against residential care, the differential treatment of the home is frequently more significant than the hourly cost comparison. Our comparison of live-in and hourly care sets out where the crossover falls locally.
Drafting points that can cause problems later
- Jointly versus jointly and severally. Joint appointment on all decisions is routinely unworkable during a hospital discharge over a weekend.
- Over-specified instructions. Absolute instructions such as never to move the donor into residential care can conflict with best interests and, in extreme cases, render the instrument unworkable. Preferences are usually the safer vehicle.
- The life-sustaining treatment option, which needs a recorded conversation rather than a ticked box.
- Interaction with an advance decision to refuse treatment, where sequencing determines precedence.
- Registration lead time. Registration currently takes 8 to 10 weeks where there are no errors, at £92 per instrument. Clients who leave it until a diagnosis is imminent frequently miss the window, and the Court of Protection route is slower still, particularly for health and welfare.
Capacity, decision by decision
Worth reinforcing with attorney clients, who commonly treat capacity as a switch. A donor may retain capacity to decide whether to accept help with shopping while lacking capacity to weigh the risks of managing medication. Capacity also fluctuates, and the relevant question is capacity for this decision at this time.
The consequence for care planning is that a health and welfare attorney frequently has no authority yet, even where the diagnosis is significant. Attorneys who assume otherwise create avoidable conflict with providers, who are obliged to take instructions from the donor while the donor has capacity.
What a provider will ask for
- A copy of the registered LPA, with the OPG stamp, or a certified copy.
- Clarity on which attorney is instructing, and whether appointment is joint or joint and several.
- Confirmation of who is contracting and who is paying, which are not always the same party.
- Where the donor retains capacity, the donor’s own agreement to the care plan.
- Contact details for the GP and any district nursing involvement.
Frequently asked questions
Can an attorney arrange care?
A health and welfare attorney can decide on care arrangements once the donor lacks capacity for that decision. A property and financial affairs attorney can contract and pay, and cannot determine the nature of the care.
Can an attorney override a local authority assessment?
No. The attorney decides for the donor; the authority decides what it will fund. A direct payment with a private top-up is the usual mechanism for reconciling the two.
Can an attorney refuse a discharge?
A health and welfare attorney can refuse consent to a proposed placement where the donor lacks capacity, subject to best interests. Disputes are resolved through the Mental Capacity Act framework and, where necessary, the Court of Protection.
Does deputyship give the same authority?
Property and affairs deputyships are relatively common; personal welfare deputyships are granted comparatively rarely, and the order defines the scope.
How quickly can a package start?
Often within a few days of an initial visit for straightforward daytime support. Early mornings, rural addresses and complex needs take longer.
About Visiting Angels Cheshire East
Visiting Angels Cheshire East provides care at home across Macclesfield, Wilmslow, Knutsford, Congleton, Alsager and the surrounding villages of East Cheshire, along with Buxton, Whaley Bridge and the Staffordshire Moorlands towns, which spans three local authority areas.
- Led by two doctors, with condition-specific training designed and overseen by clinicians.
- Live-in care available, up to full time, which is frequently the alternative being weighed against residential care.
- Carer turnover of 12 per cent, against a sector figure of 23.7 per cent (Skills for Care, 2025), which is the practical basis for continuity.
- One hour minimum visits, and clients meet their caregiver before care begins.
- Three-county coverage, which matters for clients near the Derbyshire and Staffordshire borders, where the responsible authority differs. See which council does what.
Jude’s mother Joyce is 100 and lives alone. Continuity was the family’s determining criterion:
“Joyce lives by herself and we needed a care provider that could give us the same carer most visits. Visiting Angels have been able to accommodate this, which is very helpful. They know her routine and have built up a rapport with my Mum. I trust them with keys, security and being with Mum to, cook, sit and talk and give tablets etc etc.. We communicate regularly and they are always there on the phone if issues occur.”
Jude Burton, Google review
Working with us
If you are advising a client on care arrangements, we are happy to talk through what is realistic before anything is committed to, including timescales, cost and whether a package can be delivered at the client’s address.
Our free assessment carries no obligation and produces a written package and price, which is usually more useful to an attorney than an estimate. Call 01625 720157, or send an enquiry. You can also read more about how we work.
Authored by Dr Haroon Ahmad, Managing Director, Visiting Angels Cheshire East.
Published 27 September 2026. Last updated 27 September 2026.
This note is general information for professionals and is not legal advice, nor a substitute for advice on the facts of a particular matter. Statutory limits, fees and guidance change; figures were correct at the date of publication. Visiting Angels Cheshire East provides personal care at home rather than medical or nursing care. To the fullest extent permitted by law, GB Care at Home Ltd accepts no liability for any loss arising from reliance on this article.
