Live-In Care Under a Lasting Power of Attorney: A Guide for Attorneys

Being an attorney is a serious legal responsibility. When the donor's care needs increase, most attorneys — family members and professional attorneys alike — face the same question: "Am I actually allowed to arrange live-in care, and how do I do it properly?" This guide walks through the framework.

This guide is general information, not legal advice. If you're uncertain about your powers, take advice from a private-client solicitor.

Who this guide is for

This guide is written for two groups: family attorneys (usually a spouse or adult child named under an LPA) and professional attorneys (solicitors, accountants and specialist deputies appointed by the Court of Protection). The legal framework is the same; the practicalities differ.

The two LPAs and how they work together

There are two Lasting Powers of Attorney under the Mental Capacity Act 2005:

• •Health & Welfare LPA — covers care decisions: where the donor lives, medical treatment, day-to-day support. Only usable once the donor lacks capacity for the specific decision.
• •Property & Financial Affairs LPA — covers money and property: paying bills, managing investments, selling assets. Usable with the donor's consent while they retain capacity (if the LPA allows) and as attorney once they don't.

For live-in care, both usually come into play: the Health & Welfare attorney decides that live-in care is appropriate; the Property & Financial attorney authorises how it is paid for. Where a single person is named under both, that person coordinates the decision. Where they're different people, the two must communicate.

Capacity: when can you actually use the LPA?

Capacity is decision-specific. Someone may lack capacity to manage complex finances yet retain capacity to decide where they live. Attorneys must assume capacity unless there's evidence to the contrary, and — where possible — support the donor to make their own decision before acting on their behalf. Where capacity is contested, a formal assessment by a GP, geriatrician or independent capacity assessor is standard practice.

The best-interests duty

Section 4 of the Mental Capacity Act sets out the framework for every attorney decision made on behalf of someone who lacks capacity. In brief, you must consider the donor's past and present wishes, values and beliefs, the views of anyone caring for them or interested in their welfare, and — critically — whether the decision is the least restrictive option that meets their needs. Live-in care, precisely because it preserves autonomy and the family home, is often the least restrictive route through the best-interests test.

Arranging live-in care as an attorney

1. Confirm your authority. Locate the registered LPA and confirm the OPG has activated it. Have a certified copy ready to send providers.
2. Establish capacity for the specific decision. Document your assessment or obtain a GP letter.
3. Consult family and caring team. Note who was consulted and their views — best-interests evidence.
4. Choose a CQC-regulated provider. Live-in care in England must be delivered by a CQC-registered agency. Ask for the CQC report.
5. Sign the care contract as attorney. Standard providers accept LPA signatures with a certified copy of the LPA.
6. Record everything. Attorneys — especially professional ones — must maintain a decision log. Professional deputies also file annual OPG returns.

Funding and record-keeping

Live-in care is typically paid from the donor's income, pension and cash reserves; larger cases can be structured around investments or a controlled drawdown from property equity. Where NHS Continuing Healthcare or local-authority funding is in scope, the attorney manages the application and appeals. For a fuller picture of the numbers, see our self-funding guide.

Common pitfalls

• •Trying to use a Health & Welfare LPA while the donor still has capacity — you can't.
• •Selecting the cheapest, unregulated carer to preserve estate value — this breaches the best-interests duty.
• •Failing to consult family; failing to keep records.
• •Overlooking CHC eligibility and self-funding avoidably.

Frequently asked questions