There are two different types of Deputyship, one for Property and Financial Affairs and one for Personal Welfare. A Personal Welfare Deputy is a person appointed by the Court of Protection to make health and welfare decisions for someone who does not have the mental capacity to make these decisions.
To date, the Court of Protection has been reluctant to appoint Personal Welfare Deputies with approximately 375 a year appointed compared with 15,000 Property and Affairs Deputies. This is because the Court of Protection consider that under the Mental Capacity Act 2005, the majority of health and welfare decisions can be made informally and collaboratively by those involved in the person’s care such as family, care givers, medical professionals and social workers. The Act also states that a person should firstly be supported to make health and welfare decisions and if a person lacks the mental capacity to make decisions, the least restrictive option must be taken. The person may have the mental capacity to make a Health and Welfare Lasting Power of Attorney.
In many cases the Act works however for parents of disabled children who turn 18 who up until that point, have been making decisions on their children’s behalf, the Act is alienating. Since March 2018, Rosa Monckton, and two other parents of children with impaired decision making capacity, crowdfunded to take their case to the High Court to clarify the Law on when Personal Welfare Deputies can be appointed. Rosa’s daughter, Domenica, is 23 years old and has impaired decision making capacity and cannot make health and welfare decisions. However, she is very clear that she would like her mum to continue to support her in relation to her health and welfare.
In the recent judgment in Rosa Monckton’s case the Judge set out four main principles to be taken into account when deciding whether or not to appoint a Personal Welfare Deputy.
1. The Code of Practice is incorrect to state that a personal welfare deputy should only be appointed in the most difficult cases.
2. Each case will be decided on its own merits and whether it is in that person’s best interests to appoint a personal welfare deputy.
3. The person’s (for whom a personal welfare deputy is being considered) wishes and feelings will form part of the decision, for example if it is clear they would want a family member to be appointed.
4. Personal welfare deputies will not routinely be appointed because there is law in place to enable decision making.
In practice, we are aware that a lot of families feel excluded from decision making. As well as considering a personal welfare deputyship application, there may be other ways to address this issue.
If you would like to discuss making a personal welfare deputyship application and/or any aspects of decision making, get in touch with one of our team.