Families risk being overruled on care decisions

Thousands of families across England and Wales risk being overruled on care decisions because they lack a single legal document, according to live-in care provider, NobleLive-In Care, and legal care specialist, Care Necessities.

At the centre of the issue is Lasting Power of Attorney (LPA) – a legal safeguard designed to protect personal choice – which experts say is widely misunderstood and frequently incomplete.

UK Government guidance confirms there are two separate types of Lasting Power of Attorney:

1. A Property and Financial Affairs LPA, covering money,bills, pensions, and property
2. A Health and Welfare LPA, covering decisions about medical treatment, daily care, and, crucially, where a person lives

While many families have a Financial LPA in place, Noble Live-In Care says the Health and Welfare LPA is far more likely to be missing, and that absence can have serious consequences.

Under government rules, a Health and Welfare LPA:

• Only comes into effect if a person lacks mental capacity
• Gives attorneys legal authority to make decisions about care, treatment and living arrangements
• Must be registered with the Office of the Public Guardian to be valid

Without it, families have no automatic legal right to decide whether care should take place, and Noble Live-In Care says families are often shocked to discover that,without a Health and Welfare LPA, hospitals or local authorities can make best-interest decisions that favour residential care, even when care at home is clinically safe and emotionally preferable.

Where no LPA exists, and urgent decisions are required, families may be forced into a Court of Protection application, a process that can take months and cost thousands of pounds, during which time care decisions may already have been made.

Julie Reddish, chartered legal executive at Care Necessities, said she is increasingly seeing families caught out by the assumption that ‘next of kin’ automatically has decision-making power during a care crisis.

She said: “One of the most-common and distressing misconceptions is that a spouse or adult child can simply step in if capacity is lost.

“In reality, without a registered Health and Welfare LPA, families have no legal authority over where, or how, care is provided.

“They may be consulted, but the final decision can sit with clinicians or the local authority, often at the worst-possible moment.”

She warns that this gap in planning frequently results in rushed decisions that default to residential care, even where care at home is clinically appropriate.

“A Health and Welfare LPA is the only legal mechanism that allows someone to choose who speaks for them about medical treatment, daily care, and where they live,” she adds.

Without a registered Health and Welfare LPA, families have no legal authority over where, or how, care is provided

“Without it, families cannot insist on live-in or home-based care, and challenging decisions becomes far more difficult, time-consuming and expensive.”

And she said Court of Protection applications can take months and are rarely granted for health and welfare matters, advising early planning to preserve independence and choice.

“Once mental capacity is lost, it’s too late to put an LPA in place,” she warns.

“We always advise families to act early, ensure both Financial and Health and Welfare LPAs are registered, and clearly record care preferences.

“It’s one of the most-effective ways to protect someone’s right to remain at home, avoid unnecessary moves into residential care, and reduce conflict during an already emotional time.”

Noble Live-In Care is highlighting that significant funding exists to support care at home, often without any means-testing.

The briefing also challenges the assumption that care at home is always privately funded.

Key 2026 funding routes in England include:

• NHS Continuing Healthcare (CHC) – Fully funded, not means-tested, and available for people with a primary health need, including full-time live-in care
• NHS Fast Track Funding – Rapid funding for individuals with urgent or deteriorating health needs
• Personal Health Budgets (PHBs) – NHS funding that can be taken as a direct payment and used to employ a live-in carer
• Attendance Allowance – Non-means-tested weekly support for those over State Pension age
• Local Authority Support – Subject to needs and financial assessment

Despite these options, Noble Live-In Care says many families only discover them after a move into residential care has already occurred.

Kirsty Prendiville Lawes, operations manager at Noble Live-In Care, said: “The law recognises the importance of independence, familiarity, and psychological wellbeing.

“But, without the right legal authority in place, families can lose control at exactly the moment they need it most.”

The provider is urging families to review their legal planning before a crisis occurs, stressing that a registered Health and Welfare LPA is often the deciding factor in whether someone is able to remain in their own home.

Prendiville Lawes adds: “Care at home is not a luxury. With the right legal and funding knowledge, it is a protected choice, but only if families act in time.”