What is welfare deputyship, and do I need to apply for one?

A deputy is someone appointed by the Court of Protection to make decisions on behalf of another person who lacks mental capacity to make those decisions themselves.

A deputy may be appointed to make decisions about property and financial affairs, or health and welfare, or both^[1].

This article aims to provide a brief guide for anyone who is involved in decision-making for a loved one who lacks mental capacity about their welfare, and who may be thinking about applying to be appointed as their deputy.

The legal framework

The Mental Capacity Act 2005 (the “MCA”) is the main piece of legislation which deals with decision-making for people who lack mental capacity. The MCA refers to a person who lacks mental capacity as ‘P’. Where P lacks capacity to take a decision for themselves, the MCA outlines an informal and collaborative decision-making process whereby those involved in P’s life and care are able to come together to reach a consensus on P’s best interests.  However, if there is a dispute about P’s best interests which cannot otherwise be resolved, the forum for resolution is the Court of Protection.

The Court of Protection

The Court of Protection (“COP”) is a specialist court that has jurisdiction over matters relating to adults who lack mental capacity. The role of the COP includes resolving disputes about what is in P’s best interests, authorising P’s care arrangements where they give rise to a deprivation of liberty, and appointing deputies to make decisions on P’s behalf.

Section 16(2) of the MCA explains that the COP has the power either to (1) make a decision on P’s behalf, or (2) to appoint a deputy to make decisions on P’s behalf. Someone appointed as P’s deputy therefore becomes the decision-maker in the areas where authority is granted.

However, it is important to note that Section 16(4) confirms that a decision by the COP is to be preferred to the appointment of a deputy.

Appointing a welfare deputy

The government has recently published a new draft version of the MCA Code of Practice, which provides guidance on the operation of the MCA generally, including up-to-date guidance on the approach that the Court will take to the appointment of welfare deputies.

Importantly, the new Code clarifies the correct legal test for the appointment of a welfare deputy following the high profile case of re Lawson^[2]. In that case, the judge confirmed that the legal test for appointing a welfare deputy is simply whether the appointment would be in P’s best interests.

This was an important clarification because, before this, the existing Code of Practice said that a welfare deputy would only be appointed in the ‘most difficult cases’. We now know that this is not correct.

However, the judge also confirmed that in the majority of cases, he believes that the most likely conclusion will be that it is not in P’s best interests for the COP to appoint a welfare deputy. The judge’s reasoning for this was that usually the collaborative decision-making process referred to above will be sufficient.

When will the courts appoint a welfare deputy?

As outlined above, the Courts will appoint a welfare deputy if it considers that doing so would be in P’s best interests.

The new draft Code of Practice provides some guidance about the Court’s approach to welfare deputyship applications, emphasising the need for applicants to demonstrate that the informal collaborative decision-making process has not been working in P’s best interests.

It confirms that P’s wishes and feelings on the application will form an important aspect of the decision, and gives the following non-exhaustive list of examples that might demonstrate that the appointment of a deputy was in P’s best interests:

“• Disputes within the person’s family that are having a detrimental effect on their care and will continue to do so unless one specific person is appointed to make necessary decisions

• A person with a particular medical condition requiring repeated assessment and/or treatment, where there is clear evidence that a family member who is well-placed to advocate their wishes and feelings and make decisions on their behalf has not been appropriately consulted
• Ongoing decisions on behalf of the person relating to the planning and implementation of a publicly-funded care package, where there is clear evidence that a family member who is well-placed to advocate their wishes and feelings and make decisions on their behalf has not been appropriately consulted”.

The benefits and limits of deputyship

When a welfare deputy/deputies are appointed, they become the decision-maker/s in the areas where authority is granted. Common areas where authority is granted to a deputy include:

• Where the person should live and with whom
• Matters of day-to-day care including diet and dress
• Consenting to or refusing consent to medical/dental treatment
• The provision of care services
• What leisure/social activities the person should take part in
• To make and conduct complaints on the person’s behalf about their care and treatment

When a person is appointed as welfare deputy, they have authority to consider the various available options and to make the decision on P’s behalf.

So, for example, if the local authority identified 3 possible residential arrangements for P, and agreed to commission and fund each of them, then the deputy’s choice as to which would be in P’s best interests would be definitive. Another example might be that if the NHS offered two different kinds of treatment for a medical condition, then the deputy could decide between the two sets of treatment.

Without deputyship, family members are just one voice to be consulted alongside other people involved in P’s life as part of the collaborative decision-making process, (including, for instance, P’s social worker and other professionals).  Importantly, they therefore should be involved in the process, but would not be the decision-maker.

There are some limits to what can be achieved through deputyship: a welfare deputy is authorised to make ‘best-interest’ decisions only – i.e. to choose from amongst available options. It would not, for example, allow the deputy to force the local authority to fund a care arrangement which it was not prepared to fund (for instance because there is a cheaper arrangement which would also meet P’s needs). Nor would it allow the deputy to force an NHS body to give a kind of treatment which it is not prepared to recommend. In essence, welfare deputyship allows the deputy to make on P’s behalf the kinds of decisions they would make for themselves if they had capacity to do so.

There are also limits to the areas in which a deputy can have authority to act, most notably in relation to who P has contact with.

The application process

Although individuals can in principle make the application without legal assistance, it is advisable that anyone interested in applying for welfare deputyship seeks legal advice before applying. As outlined above, the application is not straightforward, and applicants will want to ensure that their application demonstrates why this threshold is met.

[1] https://www.gov.uk/become-deputy

[2] Re Lawson, Mottram and Hopton (appointment of personal welfare deputies) [2019] EWCOP 22

July 2022

Photo by Nathan Anderson on Unsplash