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Medical Decisions When You Can't Speak: Your Legal Options (UK)

· 14 min

Note: The following scenario is fictional and used for illustration.

Sarah's mother had been living independently at 72 when she suffered a stroke. Within hours, Sarah faced questions she'd never anticipated: Should they attempt aggressive treatment? Would her mother want a feeding tube if she couldn't swallow? Did she want to be resuscitated if her heart stopped?

Sarah had no idea what her mother would want. They'd never discussed it. With no health and welfare Lasting Power of Attorney (LPA) in place, doctors made decisions based on what they believed was in her mother's "best interests"—choices that may or may not have aligned with what her mother would have wanted.

Nearly 1.5 million LPAs were registered in 2024, yet millions of UK adults still have no legal arrangements for medical decisions if they become incapacitated. Without planning, your family faces uncertainty and doctors follow legal protocols that might not reflect your wishes.

This guide explains your legal options for protecting your medical decision-making, from health and welfare LPAs to advance decisions, and what happens if you've made no arrangements at all.

Table of Contents

What Happens When You Lose Capacity to Make Medical Decisions

Mental capacity means the ability to make a specific decision at a specific time. You might have capacity to decide what to eat for breakfast but lack capacity to make complex medical treatment decisions.

Under the Mental Capacity Act 2005, you lack capacity if you cannot understand information relevant to a decision, retain that information, use or weigh that information, or communicate your decision.

Common situations that affect medical decision-making capacity:

  • Stroke or brain injury causing communication difficulties
  • Dementia progression affecting understanding and memory
  • Unconsciousness from accident or sudden illness
  • Mental health crisis affecting judgment
  • Severe infection causing delirium or confusion
  • End-of-life situations where you're heavily sedated

Consider Michael, 68, who developed pneumonia that progressed to sepsis. Within 24 hours, he went from making his own decisions to being unconscious in intensive care. His family faced immediate questions about ventilation, kidney dialysis, and potential surgery—all without knowing his preferences.

Mental capacity isn't permanent or all-encompassing. You might lack capacity temporarily (during a medical crisis) or progressively (with dementia). You might have capacity for some decisions but not others.

This is why planning ahead matters. The decisions you make now—about who should speak for you and what treatments you'd refuse—protect your autonomy when you can no longer express your wishes directly.

Understanding the Mental Capacity Act 2005

The Mental Capacity Act 2005 provides the legal framework for medical decisions when someone lacks capacity. It applies in England and Wales to everyone aged 16 and over.

The Act's five core principles:

  1. Presumption of capacity: You're assumed to have capacity unless proven otherwise
  2. Support to make decisions: You must receive all practical help to make your own decisions
  3. Unwise decisions don't prove incapacity: You have the right to make decisions others consider unwise
  4. Best interests: Any decision made for you must be in your best interests
  5. Least restrictive option: Any intervention must be the least restrictive of your rights and freedom

When healthcare professionals assess capacity, they evaluate whether you can:

  • Understand information about the decision
  • Retain that information long enough to make the decision
  • Use and weigh the information
  • Communicate your decision (by any means)

Emma, 54, had early-stage dementia. She lacked capacity to manage complex finances but retained capacity to make medical decisions about routine treatments. Her doctors assessed capacity for each specific decision, not globally. She could consent to antibiotic treatment but needed her attorney to decide about selling her house.

The Act establishes legal mechanisms for planning ahead—health and welfare LPAs and advance decisions. It also sets out what happens if you haven't planned: best interests decision-making by healthcare professionals.

Understanding this framework helps you see why planning matters. Without an LPA or advance decision, Section 4 of the Mental Capacity Act requires doctors to make "best interests" decisions through a formal process—but you won't control who has input or what choices they make.

Health and Welfare Lasting Power of Attorney Explained

A health and welfare LPA lets you appoint someone (your "attorney") to make medical and care decisions on your behalf when you lack capacity. It's the most comprehensive way to protect your medical decision-making.

What your attorney can decide:

  • Consent to or refuse medical treatment
  • Decide where you should live
  • Consent to or refuse assessments for care services
  • Make decisions about your daily routine (washing, dressing, eating)
  • Decide who you have contact with

You can also give your attorney authority to make decisions about life-sustaining treatment—but you must specify this explicitly in the LPA document.

David and his partner Rachel had been together for 15 years but weren't married. When David suffered a traumatic brain injury, Rachel had no automatic legal right to make decisions about his care. Because David hadn't made a health and welfare LPA, doctors consulted his estranged parents instead. Rachel watched helplessly as his parents made choices she knew David wouldn't want.

Key features of health and welfare LPAs:

  • When it takes effect: Only after you've lost capacity (you can't use it while you still have capacity)
  • Who can be your attorney: Anyone aged 18+, including partners, family members, or trusted friends
  • Multiple attorneys: You can appoint more than one and specify whether they act jointly (all must agree) or jointly and severally (they can act independently)
  • Registration: Must be registered with the Office of the Public Guardian before use
  • Cost: £92 registration fee (as of November 2025), with reductions available for low-income donors

Unlike a will, which only takes effect when you die, a health and welfare LPA operates while you're alive but lack capacity. It gives your chosen person legal authority to speak for you in medical settings.

The alternative—having no LPA—means doctors decide who to consult and make final decisions themselves. Your partner, children, or closest friend might have input, but they won't have legal authority to make decisions.

Advance Decisions to Refuse Treatment (Living Wills)

An advance decision to refuse treatment (also called a living will) lets you refuse specific medical treatments in advance. Unlike an LPA, which appoints someone to decide for you, an advance decision records your own treatment refusals.

Legal requirements for a valid advance decision:

  • You must be 18 or over
  • You must have capacity when making it
  • It must specify which treatments you refuse
  • You must not be under pressure from anyone
  • For refusing life-sustaining treatment: must be written, signed by you, witnessed, and include the statement "even if life is at risk"

Margaret, 76, had watched her husband spend his final months on a ventilator in intensive care, unable to communicate. She made an advance decision refusing mechanical ventilation, tube feeding, and CPR if she had severe dementia or a catastrophic stroke. When she developed advanced dementia and pneumonia two years later, her advance decision was followed—she received palliative care at home instead of intensive treatment in hospital.

What you can refuse:

  • Specific medical treatments (antibiotics, surgery, dialysis)
  • Life-sustaining treatments (CPR, ventilation, artificial nutrition and hydration)
  • Treatments in specific circumstances (if you have advanced dementia, if you're unlikely to recover consciousness)

What you cannot refuse:

  • Basic care like warmth, shelter, and hygiene
  • Offer of food and water by mouth
  • Pain relief that's offered and you can accept or refuse at the time

Healthcare professionals must follow a valid advance decision if it meets legal requirements and applies to your current situation. If they ignore it, they could face criminal prosecution or civil liability.

Important limitations:

Advance decisions only refuse treatment—you cannot demand specific treatments. James made an advance decision requesting experimental treatments if he developed cancer, but doctors weren't legally obliged to provide treatments they considered clinically inappropriate.

You can withdraw or change your advance decision at any time while you have capacity. Even a verbal withdrawal is valid, though it should be documented.

If you later make a health and welfare LPA and give your attorney authority over the same treatments your advance decision covers, the LPA may override the advance decision if made later.

Best Interests Decision-Making Without an LPA

If you lack capacity and haven't made a health and welfare LPA or advance decision, doctors make medical decisions based on your "best interests" under Section 4 of the Mental Capacity Act.

The best interests checklist requires decision-makers to:

  1. Not make assumptions based solely on your age, appearance, condition, or behavior
  2. Consider whether you might regain capacity and if the decision can wait
  3. Encourage your participation as much as possible
  4. Consider your past and present wishes, feelings, beliefs, and values
  5. Consult with family, carers, and anyone named in an LPA for property and finances
  6. Not be motivated by a desire to bring about your death when deciding about life-sustaining treatment

Sophie's father had advanced dementia and developed kidney failure. Without an LPA, doctors held a best interests meeting with Sophie and her siblings. They reviewed his previously expressed wishes (from casual conversations years earlier), considered his religious beliefs, consulted his GP about quality of life, and asked the family what they thought he would want. The decision was made collectively, but Sophie wished her father had legally appointed her to decide—she knew him best.

Who gets consulted in best interests decisions:

  • Your family members
  • Anyone caring for you
  • Close friends who interest themselves in your welfare
  • Your attorney for property and financial affairs (if you have one)
  • Your deputy (if the Court of Protection has appointed one)

If you have no one appropriate to consult, an Independent Mental Capacity Advocate (IMCA) must be appointed for significant decisions.

Why best interests isn't enough:

Best interests decision-making has limitations. Healthcare professionals lead the process, not your family. Your previously expressed wishes are considered but aren't determinative. There's potential for family disagreement, with no single person having legal authority.

When Robert's family disagreed about whether to continue life support after his stroke, the hospital ethics committee made the final decision. His sister wanted treatment continued; his brother thought Robert wouldn't want to live with severe disability. The decision took weeks, causing family conflict and emotional distress that a pre-appointed attorney could have avoided.

Best interests works as a safeguard, but it's not the same as having someone you've chosen making decisions according to your known wishes.

Choosing Between an LPA and an Advance Decision

You don't have to choose—you can have both. Many people make a health and welfare LPA for flexibility and an advance decision for specific, non-negotiable treatment refusals.

Choose a health and welfare LPA when:

  • You want someone you trust to make flexible decisions based on circumstances
  • You want one document covering all medical and care decisions
  • You're unsure exactly what medical situations you might face
  • You want your attorney to be able to consent to beneficial treatments as well as refuse unwanted ones
  • You value someone's judgment to adapt to changing medical circumstances

Choose an advance decision when:

  • You have specific, strongly held views about treatments you'd refuse
  • You want to refuse life-sustaining treatment in defined circumstances
  • You don't have someone you trust to make decisions for you
  • You want to ensure specific treatments aren't started even if a doctor recommends them

Using both together:

Helen made a health and welfare LPA appointing her daughter to make most medical decisions. She also made an advance decision refusing CPR, mechanical ventilation, and tube feeding if she had advanced dementia and couldn't recognize her family. The LPA gave her daughter flexibility for most decisions; the advance decision made her end-of-life wishes absolutely clear.

If you have both documents, make sure they don't conflict. If your advance decision refuses treatments your LPA gives your attorney authority over, clarify which takes precedence or ensure they complement each other.

Cost comparison:

  • Health and welfare LPA: £92 registration fee
  • Advance decision: Free (no registration required, though some organizations charge for templates)
  • Solicitor for both: Typically £650+ for comprehensive planning

Jennifer used WUHLD to create her health and welfare LPA with step-by-step guidance, then downloaded a free advance decision template from Age UK for specific treatment refusals. Total cost: £92 for LPA registration, plus time to complete both documents.

The right choice depends on your circumstances, your relationships, and how much control you want over specific medical scenarios versus trusting someone's judgment.

How to Set Up a Health and Welfare LPA

Setting up a health and welfare LPA involves creating the document, getting it signed correctly, and registering it with the Office of the Public Guardian.

Step 1: Choose your attorney(s)

Select someone you trust completely to make medical decisions aligned with your values. This might be your spouse, partner, adult child, sibling, or trusted friend.

Consider:

  • Do they understand your wishes and values?
  • Will they be available when needed?
  • Can they handle difficult decisions under pressure?
  • Do they live nearby or can they travel to you if needed?

Step 2: Decide on attorney authority

If appointing multiple attorneys, choose:

  • Jointly: All must agree on every decision (creates safeguards but can cause delays)
  • Jointly and severally: Each can act independently (provides flexibility)
  • Jointly for some decisions, jointly and severally for others: Specify which decisions require agreement

Decide whether to give authority over life-sustaining treatment. If you do, your attorney can consent to or refuse treatments necessary to keep you alive, like CPR or ventilation.

Step 3: Complete the LPA form

Use the official LP1H form from GOV.UK or an online service like WUHLD that guides you through the process.

You'll need to:

  • Provide your details and your attorney's details
  • State any preferences or instructions (e.g., "My attorney must consult my religious adviser before making decisions about end-of-life care")
  • Name a certificate provider (someone who confirms you understand what you're doing and aren't being pressured)
  • Choose whether to notify anyone when you register the LPA

Step 4: Sign the document correctly

You must sign the LPA first, then your certificate provider, then your attorney(s). If signing order is wrong, the LPA will be rejected.

Step 5: Register with the Office of the Public Guardian

Registration currently takes 8-10 weeks. Pay the £92 fee (or apply for reduction/exemption if eligible).

Your LPA cannot be used until it's registered—even in emergencies. Don't delay registration.

Step 6: Tell relevant people

Once registered, inform:

  • Your GP (so it's noted in your medical records)
  • Your attorney (give them a copy)
  • Your family (so they know who has authority)
  • Your care home or supported living facility (if applicable)

Thomas completed his health and welfare LPA online through WUHLD in 45 minutes, sent it for signature, and registered it immediately. Six months later, when he had a severe stroke, his LPA was already active. His wife could make medical decisions immediately, without legal delays.

Setting up an LPA while you're healthy and have capacity gives you control. Waiting until you're ill or declining might mean you're too late.

Common Medical Decisions Your Attorney Can Make

A health and welfare attorney's powers are broad, covering medical treatment and daily care. Under the Mental Capacity Act, your attorney can make decisions you could make yourself if you had capacity.

Medical treatment decisions:

  • Consent to or refuse surgery
  • Consent to or refuse medication (including starting, stopping, or changing prescriptions)
  • Consent to or refuse diagnostic tests and scans
  • Consent to or refuse blood transfusions
  • Consent to or refuse chemotherapy or other cancer treatments
  • Consent to or refuse vaccinations
  • Consent to participate in medical research (if in your best interests)

Care and residence decisions:

  • Where you live (your own home, with family, care home, supported living)
  • What care and support services you receive
  • Your daily routine and activities
  • Whether to assess your needs for NHS continuing healthcare
  • Whether you should move to a different care setting

Personal decisions:

  • Who you have contact with (visitors, phone calls, video calls)
  • Whether to restrict contact with someone if it's in your best interests
  • Your diet (within limits—they cannot refuse food and water if you're willing and able to eat)
  • Whether you attend social or religious activities

Life-sustaining treatment (if you gave this authority):

  • Consent to or refuse CPR (cardiopulmonary resuscitation)
  • Consent to or refuse mechanical ventilation
  • Consent to or refuse artificial nutrition and hydration
  • Consent to withdraw life-sustaining treatment

When Patricia's mother developed pneumonia while in advanced dementia, Patricia (as attorney) faced a choice: hospital treatment with IV antibiotics and possible intensive care, or palliative care focusing on comfort. Because her mother had explicitly told her years earlier "no hospitals, no suffering," Patricia chose palliative care. Her mother died peacefully three days later. Without the LPA, doctors would have transferred her mother to hospital—the medically standard response.

What your attorney cannot decide:

  • Anything while you still have capacity for that specific decision
  • Consent to you getting married or divorced
  • Consent to sexual relations
  • Consent to place you in psychiatric detention under the Mental Health Act
  • Consent to certain treatments for mental disorder if you're detained under the Mental Health Act
  • Demand treatment doctors consider clinically inappropriate
  • Make decisions that clearly conflict with an advance decision you made later

Your attorney must follow the Mental Capacity Act principles—acting in your best interests, respecting your wishes, choosing the least restrictive option, and involving you as much as possible.

When Medical Decisions Become Legally Complicated

Some medical scenarios create legal complexity even with a health and welfare LPA in place.

Disagreement between attorneys

If you appointed multiple attorneys to act jointly and they disagree, they're stuck. Neither can act without the other's agreement.

Caroline appointed her two daughters jointly for all decisions. When she developed bowel cancer, one daughter wanted aggressive treatment; the other thought their mother would refuse treatment given her age and frailty. The deadlock forced an application to the Court of Protection to resolve the dispute—costing £4,000 in legal fees and delaying treatment for weeks.

Solution: Appoint attorneys jointly and severally for most decisions, or specify a casting vote.

Conflict with advance decision

If your advance decision was made after your LPA and covers the same treatment decisions, the advance decision may prevail.

Disagreement between attorney and doctors

If your attorney refuses treatment doctors believe is in your best interests, or demands treatment doctors consider futile, the dispute may go to court.

Emergency treatment before attorney can be contacted

Doctors can provide urgent treatment necessary to save your life or prevent serious harm before contacting your attorney. But they should contact your attorney as soon as reasonably possible.

Detention under the Mental Health Act

If you're detained under the Mental Health Act for psychiatric treatment, your health and welfare attorney cannot make decisions about treatment for your mental disorder while you're detained. They can still make other healthcare decisions.

Deprivation of liberty

If proposed care arrangements would deprive you of your liberty (e.g., locked care home, constant supervision), additional legal safeguards apply even if your attorney consents.

Robert's attorney agreed he should move to a locked dementia unit for his safety. Because this deprived Robert of liberty, the care home had to apply for a Deprivation of Liberty Safeguards authorization, which involved independent assessment and monitoring.

When the Court of Protection gets involved

The Court of Protection can:

  • Resolve disputes between attorneys or between attorneys and family
  • Make specific medical decisions if there's genuine uncertainty
  • Remove an attorney if they're not acting in your best interests
  • Appoint a deputy if you never made an LPA

Court applications are expensive (£365+ application fees plus legal costs potentially in thousands) and time-consuming. They're a last resort when agreement cannot be reached.

Prevention is better: choose attorneys carefully, give clear instructions about your wishes, and consider joint and several appointment to avoid deadlock.

Frequently Asked Questions

Q: What happens if I can't make medical decisions and have no LPA?

A: If you lose mental capacity without a health and welfare LPA, doctors will make decisions in your "best interests" under the Mental Capacity Act 2005. They must consult your family, consider your previously expressed wishes, and follow a legal checklist. However, you won't have control over who makes these decisions or what choices they make on your behalf.

Q: What's the difference between a health and welfare LPA and an advance decision?

A: A health and welfare LPA appoints someone to make medical decisions for you when you lack capacity. An advance decision (living will) is a document where you refuse specific medical treatments in advance. An LPA gives someone flexibility to make various decisions based on circumstances; an advance decision only refuses specific treatments you've identified.

Q: Can I refuse life-sustaining treatment in advance?

A: Yes, you can refuse life-sustaining treatment through an advance decision under the Mental Capacity Act 2005. It must be in writing, signed, witnessed, and include the statement "even if life is at risk". This is legally binding if valid and applicable to your circumstances.

Q: How much does it cost to set up a health and welfare LPA?

A: The registration fee for a health and welfare LPA is £92 (as of November 2025). You can create the LPA yourself using free forms from gov.uk, or use online services like WUHLD (£99.99 for complete LPA with guidance) or solicitors (typically £650+). Some people qualify for fee reductions or exemptions.

Q: When does a health and welfare LPA actually start working?

A: A health and welfare LPA can only be used once you've lost mental capacity to make specific decisions. Unlike a property and financial affairs LPA (which can be used immediately), your health and welfare attorney cannot act while you still have capacity to make your own medical decisions.

Q: What medical decisions can my health and welfare attorney make?

A: Your health and welfare attorney can make decisions about medical treatment, where you live, your daily care routine, and who you have contact with. You can also give them authority to make decisions about life-sustaining treatment if you specify this in the LPA document.

Q: Are advance decisions legally binding in the UK?

A: Yes, advance decisions are legally binding in England, Wales and Northern Ireland under the Mental Capacity Act 2005, provided they meet legal requirements. In Scotland, advance statements are not legally binding but doctors will usually respect them. Healthcare professionals must follow a valid advance decision that applies to the treatment in question.

Conclusion

Planning for medical decisions if you become incapacitated isn't pessimistic—it's protective. It ensures your voice guides your care when you cannot speak for yourself.

Key takeaways:

  • Without a health and welfare LPA or advance decision, doctors make medical decisions using "best interests" protocols, consulting your family but retaining final authority
  • A health and welfare LPA appoints someone you trust to make flexible medical and care decisions when you lack capacity
  • An advance decision lets you refuse specific treatments in advance, including life-sustaining treatment if you meet legal requirements
  • You can use both documents together—an LPA for general decision-making and an advance decision for specific, non-negotiable treatment refusals
  • Setting up these documents while you're healthy and have capacity protects your autonomy and spares your family from uncertainty

The conversation Sarah never had with her mother left her guessing during her mother's stroke. You can spare your loved ones that uncertainty by making your wishes clear and legally enforceable.

Your medical decisions are too important to leave to chance or legal default processes. Take control now, while you can.

Need Help with Your Will?

Understanding your options for medical decisions when incapacitated helps you protect your healthcare choices and relieve your family of difficult decisions. Creating a health and welfare LPA ensures someone you trust can speak for you when you cannot speak for yourself.

Create your will with confidence using WUHLD's guided platform. For just £99.99, you'll get your complete will (legally binding when properly executed and witnessed) plus three expert guides. Preview your will free before paying anything—no credit card required.

Legal Disclaimer: This article provides general information only and does not constitute legal or financial advice. WUHLD is not a law firm and does not provide legal advice. Laws and guidance change and their application depends on your circumstances. For advice about your situation, consult a qualified solicitor or regulated professional. Unless stated otherwise, information relates to England and Wales.

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