Welfare Deputyships – why the struggle?

A welfare deputyship is an appointment of a decision-maker by the Court of Protection to make a welfare decision or general welfare decisions on behalf of someone who lacks the mental capacity to make such a decision for themselves. Examples of such a decision may be to decide where a person should live, what provision of care they should receive or for a deputy to have access to personal information and authorisation to share it as necessary. In most cases where a welfare deputy is appointed, the mentally incapacitated person has not made a Health and Welfare Lasting Power of Attorney.

 

The law, by way of the Mental Capacity Act 2005, states that the decision of the court is preferred to the decision of a lay deputy, however, it recognises that there can be circumstances where ongoing decisions are required making it impractical for the court to be involved every time. If the court considers this to be the situation, it will appoint a welfare deputy if it considers it is in the best interest of the incapacitated person.

The cases of Re Mottram; Re Lawson and Re Hopton came before the Court of Protection in 2019. The issue to be considered by the court was “what is the correct approach to determining whether a welfare deputy should be appointed?” and whether it should “only be in the most difficult cases”.

All the cases were brought by the parents of young adults who had significant disabilities and who lacked mental capacity to make decisions concerning their health and welfare. Whilst minors, their parents were able to make such decisions for them by virtue of having parental responsibility. On turning 18 years old, however, the children obtained a “new legal status” which is was said was “predicated on respect for autonomy”.

The parents argued that there was an “unduly restrictive regime of appointment for welfare deputies” and questioned “what protection exists for people who lack capacity to make decisions for themselves?”.

The Official Solicitor, who was acting as an advocate to the court, argued in the case that the “normal” or “usual” outcome is that it will not be in the best interests of P [the incapacitated person] for the court to appoint a welfare deputy.

The court heard from the Office of the Public Guardian who supervise deputies that although there had been a general increase in the number of welfare deputies appointed, the numbers are still dwarfed by the number of property and financial affairs appointments.

The decision was made to provide guidance on the appointment of welfare deputies and although Senior Judge Hilder categorically stated there was no automatic presumption that a welfare deputy should not be appointed, she made it clear that such an appointment must still be demonstrated as being in the best interest of the person who lacks mental capacity. She went on to say that “it may well be the case that the most likely conclusion in the majority of cases will be that it is not in the best interests of P for the court to appoint a welfare deputy”.

With this backdrop coupled with the Mental Capacity Act 2005 Code of Practice which states that a welfare deputy should only be appointed “in the most difficult cases”, it demonstrates why so many applications for a welfare deputy are denied.

Further, there is no magic ingredient to increase the chances of a welfare deputy being appointed. The court will ultimately look at the circumstances of the case. It will use and weigh up the circumstances to balance the right of the individual to have as little restriction in their lives as possible and to have as much input into their welfare decisions themselves with the need for protection and someone in place as a decision-maker.

For further information and advice please contact Ann-Marie Aston, Partner at The Wilkes Partnership on 0121 733 8000 or email [email protected].