Family members in care
Posted on 13th January 2025
I have recently received some enquiries from family members who want to bring loved ones home from care.
Vulnerable people living in a care home might need extra help because of age-related illnesses or pre-existing medical conditions.

Your family member or friend might have been unwell or diagnosed with dementia, for example. Perhaps living at home is no longer safe or day-to-day activities like washing and preparing food have become difficult. Round-the-clock support from trained professionals in a safe environment could help them live more fully and reduce their anxiety.
However, it’s understandable that family members might want them to come home temporarily or permanently. What many don’t realise is that they don’t have a legal right to remove their loved ones from care.
That’s why it’s important to put a health and welfare Lasting Power of Attorney or LPA in place. This alows your chosen attorneys to have a say in arrangements for your care if you can’t express your wishes.
Health and Welfare LPA
Creating a Lasting Power of Attorney for your health and welfare gives someone you trust power to make decisions on your behalf. This includes where you live, if you can’t make the decision yourself.
If you don’t have an LPA your family members have to apply to the Court of Protection to change your care arrangements. This is often slow and costly and the Court might restrict what they can do.
You must create an LPA while it’s still clear you understand its terms and impact on you. This is known as ‘mental capacity’, which is also a requirement when you’re writing your Will.
DoLS – why loved ones can’t leave their care home
Members of staff in hospitals or care homes often make decisions for your vulnerable friends and relatives. For their own safety, this might mean they aren’t allowed to leave the care environment.
If someone hasn’t freely chosen to move to a care home, ‘deprivation of liberty’ safeguards, known as DoLS, apply. This means a 'person is under continuous supervision and control and is not free to leave’. It also means ‘the person lacks capacity to consent to these arrangements’.
DoLS are included in the Mental Capacity Act (MCA) and there are tests to make sure restrictions are in someone’s best interests. Normally assessors are appointed by the local authority or the NHS. They should consult family members, carers, or close friends and the situation should be reviewed at least once a year.
Once DoLS are in place, as a friend or family member, you don’t have a right to take your loved one out of the care environment. To do so, those responsible for their care would have to agree going home is in their best interests.
Is there an alternative to DoLS
Those responsible for someone’s care should consider advanced decisions to refuse a specific treatment. If your loved one has a valid advanced decision you could argue being in the care environment is no longer necessary. For example, they might not want treatment for a life-limiting illness when their condition reaches a certain stage. Alternatively, an attorney named in and LPA can make decisions about care on their behalf.
However, someone must have mental capacity to express their wishes in advance. If they lose mental capacity to make decisions, these options aren’t available.
If you would like to set up an LPA for your health and welfare please give me a call.
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