The important but challenging role of a health attorney
At Compassion in Dying we want people to be in control of their end-of-life decisions, because there is no one better to make them. We specialise in supporting people to plan for the end of life in the ways that are right for them. For some, this includes making a lasting power of attorney (LPA) for health.
This February, a case in the Court of Protection (Cwm Taf Morgannwg University Health Board v RW & Anor [2026] EWCOP) brought to light some issues faced by attorneys that we hear about every month on our information line.
This case, and the experiences of the people we support, raise important questions. How much can people rely on the LPA system? Do we have a responsibility to be honest about the potential challenges people may face acting as an attorney? And is there more that can be done to support attorneys in this important role?
A bit of background on LPAs
LPAs were introduced through the Mental Capacity Act (2005) in England and Wales, and the Adults with Incapacity Act (2000) in Scotland. These empowering pieces of legislation allow someone to appoint a person they trust to be the legal decision maker for them, if they lose mental capacity.
It’s often straightforward to make and register an LPA through the Office of the Public Guardian (OPG), the government body that oversees the LPA process. The donor (the person making the LPA) can hopefully relax once it’s registered, knowing the people they trust will have the legal right to make decisions for them if they can’t decide for themselves.
Unfortunately, we know that for some attorneys, their experience of the health and care system won’t be as straightforward.
What attorneys tell us
We hear from attorneys every month who are looking for support to carry out their role. They speak clearly and repeatedly about:
- not being recognised as the legal decision maker
- treatment and care options not being explained to them
- not being included in best interests meetings
- mental capacity assessments not being performed or recorded
- evidence of their loved one’s wishes being ignored, particularly when the attorney is trying to refuse or withdraw a treatment
- losing confidence and feeling unable to speak up for their loved one when constantly questioned and shut out by professionals
- being made to feel like they have ulterior motives when standing up for their loved ones’ wishes
Almost exclusively, these things happen when the attorney is advocating for stopping or refusing a treatment.
In 2024, research showed that 35% of the people we support said they had acted as an attorney for someone close to them. 14% of them said that they felt ignored and excluded from decisions about that donor’s care when trying to act as an attorney.
During a Court of Protection case in February, some of these problems were also observed. The difference in this case was that Ms Evans (the attorney) is a solicitor and therefore had a good understanding of the law. When Ms Evans was aware that she was being left out of key discussions about the donor’s treatment and care she took legal action. Ultimately the Health Board was found to have acted unlawfully by not consulting Ms Evans before decisions were made. Unfortunately, for most other attorneys in this position, they won’t know what steps to take or who to contact for support.
What do NHS policies say?
The people we support tell us that the Mental Capacity Act in England and Wales, and the Adults with Incapacity Act in Scotland, isn’t always followed when it comes decision making at the end of life. To find out more about how these laws are applied in practice, we submitted a freedom of information request to 214 NHS Trusts in the UK. We asked for any policies that cover:
- decision making in connection to advance decisions or LPAs
- the process for when there are disputes in best interests decision making
- the named person who overseas decision making compliance
There were huge inconsistencies between policies. Some policies covered advance decisions, some covered LPAs, some covered disputes, and some had named compliance leads. But some didn’t have a policy at all, and many didn’t cover all of these areas.
What our FOI was unable to show, was how well these policies were known about and followed by staff within the Trust. More information is needed to have a full picture of the problem, but the lack of consistency between Trusts of how end of life decisions should be made is worrying.
Attorneys deserve better support
For the people we support, the experience of being an attorney can be fraught, with very little support to help them fulfil their role.
The Office of the Public Guardian (OPG) does not provide specific support for attorneys who have questions or aren’t being listened to. There is, however, lots of attention given to scrutinising attorneys. Last year a new service was launched by the OPG to make it quicker and easier to raise a concern about an attorney. And yet there is no place for attorneys to go to when their attempts to advocate for the person they care about are overlooked and ignored.
It can be incredibly challenging to be an attorney. The responsibility is huge. From the time commitment to the potentially emotional and complex decisions they may need to make. Negotiating with different health and care professionals, tracking schedules and medications, and keeping the donor’s best interests at the forefront of it all. For some, they tell us it can feel like a full-time job.
And so, when an attorney comes up against resistance or even hostility when trying to best serve the donor, there should be support in place for them. And that support should be available as quickly and easily as the support available to people who are worried about an attorney not doing their job correctly.
Improving the attorney experience with our content
Our services are here for everyone, including attorneys who need support in their role. We hear from lots of attorneys who need answers, and don’t know where to turn.
To help with this, we have published new information explaining what to do if someone’s wishes are not being respected. This content clarifies how to tell who the legal decision maker is, how best interests decisions should be made, and what to do if someone isn’t following the legal process.
We hope this content will support attorneys or lead them to our information line, where our nurses can help them to advocate for the people they care about. But more is needed to ensure that attorneys are supported in their role if things go wrong, so that ultimately, donors’ wishes are respected when it matters most.