When Protection Becomes Restriction: The limits of a Health and Welfare LPA

Recent reports concerning explorer Sir Ranulph Fiennes have drawn attention to the role of health and welfare attorneys appointed under a Lasting Power of Attorney (LPA). Attorneys under an LPA are appointed to make decisions on behalf of the donor in relation to their health and welfare when the donor lacks the mental capacity to do so.

The friends and family of Sir Fiennes, aged 82, have expressed concerns about his welfare and isolation since it was revealed that he was diagnosed with Parkinson’s disease. Reports allege that his wife, who acts as his sole health and welfare attorney, has secretly moved him through a series of care homes under a false name. Sir Fiennes appears to have withdrawn from public life since his diagnosis, and it is alleged he has been subjected to ‘extreme restrictions’ to avoid being recognised. The owner of a care home where Sir Fiennes had been living has alerted authorities over serious concerns for his welfare, although police have subsequently stated that he is receiving suitable care and that there are no immediate safeguarding concerns. 

Whatever the true circumstances of this particular case, the publicity raises an important question for anyone making, advising on or acting under a LPA: when does protecting a vulnerable person cross the line into improperly restricting their freedom and autonomy?

Mental Capacity Act 2005 

The starting point in considering where an attorney’s authority begins and ends is the Mental Capacity Act 2005 (‘the Act’). The Act is founded on the principle that a person is presumed to have capacity unless it is established otherwise, and should not be treated as lacking capacity merely because they make a decision others consider unwise. An attorney therefore does not acquire a general right to take control of the donor’s life and any decision made on their behalf must be made in their best interests.

The donor should, so far as is reasonably practical, remain at the centre of the decision-making process. The attorney must consider the donor's past and present wishes and feelings, any relevant written statements they made while they had capacity, their beliefs and values, and other factors the donor would be likely to consider if they were able to make the decision themselves.

Where it is practicable and appropriate, the Act also requires consideration of the views of others, to include those the donor has identified for consultation, anyone engaged in caring for them or interested in their welfare, and any other attorney or Court appointed deputy.

Limits of an Attorneys Authority

Attorneys must always consider whether objectives can be achieved in a way which is less restrictive of the person's rights and freedom of action before taking decisions. For example, concerns about an individual's safety do not give an attorney an unrestricted ability to determine where they live, prevent contact with particular people or impose restrictions on their everyday life.

This balancing exercise becomes particularly important where measures intended to protect the donor significantly restrict their freedom. There may come a point at which restrictions are sufficiently serious to raise the question of whether the individual is being deprived of their liberty. At that stage, the existence of a health and welfare LPA does not, by itself, provide the necessary authority for the deprivation and further legal authorisation may be required.

Deprivation of Liberty

A deprivation of liberty engages Article 5 of the European Convention on Human Rights, which protects an individual's right to liberty and security. Put simply, a deprivation of liberty can arise where arrangements put significant restrictions on a person’s freedom or how much control they have over their everyday life. The statutory framework provides safeguards by ensuring that where care arrangements amount to such a deprivation of liberty, legal authorisation is required.

The law in this area has recently gone through a significant change following a Supreme Court ruling in June 2026. Previous case law applied a test whereby continuous supervision and control coupled with an absence of freedom to leave was determinative for a deprivation of liberty. Following the more recent case, there is now no single test when considering arrangements and instead the person’s circumstances and the nature, duration and effect of the restrictions must be considered as a whole.

A health and welfare LPA does not give an attorney unrestricted power to impose such restrictions. Even where measures are intended to keep the donor safe and are considered to be in their best interests, these may still amount to a deprivation of liberty requiring proper legal authorisation. The deprivation of liberty framework exists precisely to ensure that restrictions on a person who may lack capacity are subject to appropriate safeguards, including rights of representation, review and challenge.

Safeguarding

Where there are concerns that an attorney is acting outside the scope of their authority or is not acting in the donor's best interests, both the Office of the Public Guardian (‘OPG’) and the Court of Protection (‘COP’) can have important roles to play.

The OPG has a safeguarding function in relation to registered LPAs and can consider concerns raised about the way in which an attorney is exercising their powers. Its published guidance identifies examples such as decisions which appear to benefit the attorney rather than the donor, decisions falling outside the attorney's responsibilities and, importantly in the health and welfare context, decisions which may not be in the donor's best interests.

However, the OPG's jurisdiction is not unlimited. The OPG explains that it cannot investigate every concern referred to it. Where it cannot investigate, it may direct the person raising the concern towards another appropriate body, such as the police or a local authority.

Where judicial intervention is required, the COP has powers under the Act in relation to LPAs. The Court has jurisdiction to determine questions concerning the validity of an LPA and whether the power has been revoked or otherwise come to an end. An attorney can also be removed by the COP.

Summary

Being appointed as a health and welfare attorney is a position of considerable trust, but it does not give an attorney unlimited authority. The purpose of an LPA is to enable decisions to be made for, and in the best interests of the donor, not simply about them.

Even where a person has lost capacity to make a particular decision, their wishes, feelings, values and autonomy remain important. Protection from harm must always be balanced against their right to live their life with as much freedom and independence as their circumstances allow.

The publicity surrounding Sir Ranulph Fiennes provides a reminder of why that balance matters. It also highlights the importance of choosing attorneys carefully and having conversations, while capacity remains, about the donor's wishes for their future care, relationships and living arrangements.

The information on this site about legal matters is provided as a general guide only. Although we try to ensure that all of the information on this site is accurate and up to date, this cannot be guaranteed. The information on this site should not be relied upon or construed as constituting legal advice and Howes Percival LLP disclaims liability in relation to its use. You should seek appropriate legal advice before taking or refraining from taking any action.