Health and welfare deputies – new court guidance

Richard Ostle, Private Client Partner, writes about a recent case concerning deputyships.

In a recently reported case the Court of Protection was asked to consider the correct approach to determining whether a personal welfare deputy should be appointed and, in particular, whether such appointments should only be made in ‘the most difficult cases’. 

When an individual lacks the mental capacity to manage their own affairs, personal welfare deputyship orders can give someone else (known as ‘the deputy’) legal power to make a wide range of decisions about that vulnerable individual’s medical and social welfare including:

  • where the person lives
  • who they live with
  • their day-to-day care, including diet 
  • consenting to medical and dental treatment 
  • the person’s care arrangements
  • leisure or social activities they should take part in
  • complaints about the person’s care or treatment

Although for many people with family members who lack the mental capacity to make decisions about their own personal and medical care, the need for a personal welfare deputyship order is paramount, in recent years it has been generally accepted that, unlike for financial matters, the Court of Protection has been reluctant to grant deputyship orders of this type.  On average less than 5% of the successful deputyship appointments issued by the Court are for personal welfare deputies – with the other 95% being for financial matters.

Three test cases were brought by parents of individuals with learning disabilities and were decided together.  The parents argued that the current system includes a presumption against the appointment of personal welfare deputies (as opposed to financial deputies) – and that this was not the correct approach.

They sought to assert that the way the Court has been operating on this issue failed properly to take into account the importance of their ongoing role in supporting the interests of their children after they had reached the age of 18.

They also argued that the existing way of assessing personal welfare deputyship applications did not properly take into account the wishes and feelings of those children.

Some of the main principles set down by the Court in this case were as follows:

  1. the current Code of Practice which applies to personal welfare deputyship applications is wrong in as much as it suggests that the starting point is that personal welfare deputies should only be appointed in the most difficult cases
  2. each case should actually be decided on its own merits, and by reference to whether an appointment is in the best interests of the person who lacks capacity to make their own decisions
  3. that person’s wishes and feelings will be one aspect of that decision (for instance if it is clear that they would wish a family member to be appointed to be their personal welfare deputy)

Although this case does not signal a wholesale change to the existing rules around the appointment of health and welfare deputies, as the Court will still take the view that in many cases such wide ranging orders are unnecessary, it may nevertheless mark a shift in the attitude of the Court of Protection judges to these applications – which will be welcomed by many families, but most particularly by parents of children with learning disabilities who feel that the current implementation of the law unfairly excludes them from being the main decision maker for their children once they reach the age of 18.

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