The Court of Protection has recently dealt with three conjoined cases to determine the correct approach for appointing a Personal Welfare Deputy as the applicants considered the current approach to be contradictory and confusing.
As the Court of Protection deals with cases from those who are most vulnerable in our society, the person who lacks capacity is anonymised and referred to as 'P'. In the cases they are sometimes referred to by their initials only.
It was previously thought a Personal Welfare Deputy would only be appointed in the most difficult of cases, such as a breakdown of trust and confidence between 'P'/his family members and the healthcare professionals involved in 'P's' care, however recently, Personal Welfare Deputies have been appointed where there is no breakdown, for example a Deputy has been appointed as P is living with dementia and someone has applied to be the decision maker for welfare going forward.
Mr Justice Hayden clarified the Court's position in Lawson, Mottram and Hopton, Re (appointment of personal welfare deputies) (Rev 1) [2019] EWCOP 22 and confirmed that as with any application for Deputyship, the starting point is the Mental Capacity Act 2005. If a person lacks capacity and someone is making a decision on their behalf, section 4 of the Act provides the factors and steps which must be taken into consideration to ensure that the decision is made in the best interests of the person who lacks capacity, and not as a result of the motives of the person making the decision on their behalf.
In his judgment Mr Justice Hayden also referred to section 5 of the Act, highlighting that this confers a general authority for someone to make decisions in connection with another's care or treatment without formal authorisation, provided certain requirements are met. Often this may mean that those involved in P's care can work collaboratively to make decisions, rather than obtain a Deputyship Order.
For this reason Mr Justice Hayden considers that the current approach to Personal Welfare Deputyships may mean that no Deputyship is required at all as people making the decision on behalf of 'P', such as healthcare professionals, family members etc should be using the Act and Mental Capacity Code of Practice to ensure they are acting in P's best interests at all times.
The case has shed light on Personal Welfare Deputyships. As they are less common than Deputyships for Property & Financial Affairs, the general public may not fully understand the application process, or when and why a Deputy may be required – which is why Mr Justice Hayden sought to clarify the procedure.
What is a Personal Welfare Deputyship?
A personal welfare Deputyship is similar to a Lasting Power of Attorney for Health & Welfare in that it covers decisions about:-
- Where the person should live
- Who they should live with
- Their care arrangements
- Decisions about their day-today wellbeing needs such as their diet and dress.
A personal welfare Deputyship is helpful in situations where decisions need to be made about a person's welfare as it provides someone, usually a family member, with the legal authority to make those decisions.
In contrast with a Lasting Power of Attorney for Health & Welfare, the authority to refuse consent to the carrying out or continuation of life sustaining treatment is not always provided in the Order and as such the Court has to grant this authority, if they feel it is appropriate.
When might a Personal Welfare Deputy be appointed?
Each case is taken on its own merit and whether it is in 'P's' best interests for a Deputy to be appointed or if the Court considers that healthcare professionals are best placed to make decisions regarding P's welfare. However, a Deputy may be appointed in the following situations:-
- If someone needs a series of linked welfare decisions then it would not be appropriate to apply to the Court regarding these decisions on each occasion;
- The court accepts this is the most appropriate option and the Deputy, whilst the ultimate decision maker regarding some welfare matter, will consult the relevant professionals/family members when making decisions;
- The Court believes that 'P' would be at risk of serious harm if a family member were to continue making decisions and so appoints a local authority office, for example, as Deputy;
- There is a breakdown in trust and confidence or a background of conflict between family members and healthcare professionals due to previous care failings.
What is the role of a Personal Welfare Deputy?
The Deputy must remember that they are appointed to make decisions which are in P's best interests and not influenced by their own motives. It is useful for all Deputies, whether appointed as Personal Welfare or for Property & Financial Affairs, to have a good understanding of the Mental Capacity Act 2005, the Mental Capacity Act Code of Practice and the provisions (terms) of the Order which appoints them as this will outline the authority they have when it comes to decision making.
Whilst Personal Welfare Deputyships are rare, it appears they are on the increase with Mr Justice Hayden's judgment noting there was a 10% increase between 2009 and 2010.
At Clapham & Collinge we have a dedicated team of solicitors who specialise in Court of Protection matters. We have experience in making such applications and have been successful in all of our applications to date.
To find out more, contact us on 01603 693500 or email us using the 'Make an enquiry' form. Appointments available at our Norwich, North Walsham and Sheringham offices.
*This article is provided for general information purposes only and does not constitute legal advice or other professional advice.
