The Court of Protection gives guidance on when Personal Welfare Deputies should be appointed.
The Court of Protection can appoint an individual to be two kinds of deputies (a deputy is someone empowered to make certain decisions on behalf a person who lacks capacity – see our guide): a property and affairs deputy and/or a personal welfare deputy. The former can make decisions about finances and the latter about welfare issues such as treatment, residence and contact.
While the two types are very similar in operation, the Code of Practice to the Mental Capacity Act states that welfare deputies should only be appointed 'in the most difficult cases'. This is reflected in the number of appointments: welfare appointments averaging at 375 per year as opposed to around 15,000 financial deputies.
The logic behind this is that financial decisions are made routinely and require, in practice, formal authority. It would not be practical to go back to court every time a family member or professional wanted to make a financial decision. Welfare decisions, on the other hand, tend to be less frequent and more specific – where should a person live for example – and the court should make these decisions individually rather than giving a particular person power to unilaterally decide them.
In this application by parents of three young people with cognitive impairments the Court considered the status of the Code and gave detailed guidance on when welfare deputies should be appointed.
In summary, the Court firmly rejected the idea of a presumption against welfare deputies. All applications must be considered on a case-by-case basis and determined in the best interests of the individual, which includes consideration of their wishes and feelings. The lack of welfare deputies is explained not by a presumption but by the application of general principles within the MCA and because many welfare decisions can be taken without a formal power.
The judgment also pointed out that, on statistics provided by the Office for the Public Guardian, most welfare deputy applications are made in relation to young adults aged between 18 and 24. Decision-making law changes dramatically at 18, where 'parental responsibility' ends and professionals have far more of a say. This can be a difficult time for parents (not to mention for the young person themselves) and welfare deputyship may be an attractive option. However, Mr Justice Hayden stated:
The extension of parental responsibility beyond the age of eighteen, under the aegis of a [welfare deputyship], may be driven by a natural and indeed healthy parental instinct but it requires vigilantly to be guarded against. The imposition of a legal framework which is overly protective risks inhibiting personal development and may fail properly to nurture individual potential.
We can't see that this judgment will make a huge difference when people are applying for welfare deputyship. The application will still need to be made out in the best interests of the individual and with reference to all the elements of best interests set out in section 4 of the MCA. Nor does it seem to encourage more or less welfare deputyship than at present.
There is a useful recognition in the judgment of the difficulties in moving from children to adult services. Parents may apply for welfare deputyship if they feel that there is a power imbalance between themselves and the responsible body, and perhaps because adult services can be less family-orientated than children's services. Consistency in services and information about processes, roles and responsibilities can make the transition smoother.
More consistent informal MCA decision making is also important. While decisions should be reached in consensus we hear of cases where family members feel like decisions are made by professionals and they are left in a 'like it or lump it' situation. These relationships can be fractious, and particularly with young people reaching 18 where the dynamic shifts overnight.
This, we think, is the most important point – ensuring that informal best interest decisions are properly made, rather than shifting the balance of power one way or the other. In its report on the Deprivation of Liberty Safeguards, the Law Commission made a number recommendations which would have helped here, such as making the individual's wishes and feeling more important and by improving record keeping for some informal best interests decisions. Unfortunately government did not follow these recommendations when passing the Mental Capacity Act (Amendment) Act 2019.
The full judgment can be read here.
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