10.09.19

The legal position regarding decision making changes once a person becomes an adult.

We regularly receive calls from concerned family members asking what’s involved in applying to the Court of Protection (CoP) for a Personal Welfare Deputy Order, also known as a deputyship order, for their son or daughter.

Frequently families are advised by health and social care professionals that they need to apply to become a Personal Welfare Deputy for their adult child as they do not have the capacity to make their own decisions.

Sometimes families are told it is because the child has just turned 18, others are told that it is necessary because of sharing information and data protection regulations; and in some cases, parents feel that decisions are being made about their child without consulting them.

However, in many cases, a Personal Welfare Deputy Order is not necessary and Katherine Miller, Solicitor, explains why.

The purpose of appointing a Personal Welfare Deputy is to allow that person, or people, to make certain decisions on behalf of someone who cannot make their own decisions.  This may be decisions about medical treatment, where the individual lives and what care they receive. Although this sounds simple, applications for a Personal Welfare Deputy Order are complex and often unsuccessful.  To put it in perspective, in 2017 the Court of Protection made just 420 orders for Personal Welfare Deputies to be appointed. In the same year, the Court of Protection made 15,448 orders appointing Property and Financial Affairs Deputies.

The main reason the CoP do not appoint many Personal Welfare Deputies is because the provisions set out in the Mental Capacity Act 2005 (MCA) are sufficient for most health and welfare decisions to be made without any formal authority being required. There should be no need to apply to the Court of Protection in the majority of situations.

What are the provisions of the MCA?

The MCA and the supplemental Code of Practice governs the process for making a decision where a person lacks the mental capacity to make it for themselves.  The main principle is that any decision required at that time is to be based on what is in the best interests of that person.

“Anything done for or on behalf of a person who lacks mental capacity must be done in their best interests”

If it has been established that the person lacks the mental capacity to make a certain decision then those involved in his/her care must look at what is in their best interests. The decision might be made by a parent, a carer, a health professional, or a social worker but when a decision is more important or complex, it may be necessary to consult all of the above.

When determining what is in a person’s best interests it is important to encourage the person to participate in any discussions where possible, consider their wishes and feelings as well as any beliefs they may have and consider the views of anyone involved in the care of that person or anyone interested in their welfare.

The key point to bear in mind if you are a parent or carer of someone who lacks capacity to make a decision is that you should be involved in discussions with professionals, including those from local authorities and the NHS, to determine what is in the best interests of your child. In most situations,family members should be consulted when their relative is over the age of 18 and IT IS NOT necessary to be appointed as a Personal Welfare Deputy before being involved.   

As is often suggested, it is not the case that family members should only be consulted when it is an important decision. All decisions must be made in the person’s best interests and, more often than not, this requires consulting with the family before the decision is made as they are most likely to know more about that person than anyone else.

As a parent, it is important to understand the provisions of the MCA to prepare you for the changes in the decision making process and ensure you are involved whenever possible with considering what is best for your child.

 I’m the parent, why can’t I make decisions without consulting others?

Some day to day or straightforward decisions may be taken without the need to involve others.  This is particularly the case where your child lives with you and there is no difficulty in determining what is best for them.

However, in some cases, local authorities or medical professionals will be involved in a decision and family members may consider obtaining a Personal Welfare Deputy Order as a way to override any decision made. This is unlikely to succeed as the Court of Protection will want to see evidence that parties are working together to determine what is in a person’s best interests. Before they will consider issuing a Personal Welfare Deputy Order, the CoP will look at the approach that has been taken to make a decision and the actions of those involved.  In most situations, working together to explore the options available and coming to an agreement on what is best for that person is the aim of the MCA.

UPDATE: The MCA Code of Practice states that a Welfare Deputy appointment should only be made “in the most difficult cases”.  In March 2019 the campaign, ‘Help Protect our Vulnerable Children’ challenged this wording in the High Court and the Judge concluded that the wording did need revisiting.  He stated that there should be no statutory bias or presumption against the appointment of a Welfare Deputy.

Although this judgement won’t necessarily lead to more parents being appointed as Welfare Deputies, it should mean that parents won’t need to demonstrate that their child’s situation is a “difficult case” before being able to show that their appointment would be in their child’s best interests.

What to do if a decision has been made that you don’t think is in the best interests of your loved one?

If there is a dispute in the decision-making process then attempts should be made to resolve this. It is usual for all parties involved to hold a best interests meeting to discuss the options available or the issues that are faced.  If there is still disagreement on what is in the best interests of your child then it may be necessary to obtain a second opinion.

It may also be beneficial to look at the complaints or appeals procedure that can be followed if the decision is made within a particular organisation such as the NHS.

In difficult situations where no agreement can be reached or the decision is particularly complex, it may be necessary to apply to the Court of Protection for a Personal Welfare Deputy Order or for the Court’s decision on that matter.

My advice to families is that when making each decision, focus on what is in your loved one’s best interests.  If everyone involved keeps this principle as their priority, there should be no reason to involve the Court.

How Renaissance Legal can help?

Our specialist team are highly experienced in applications to the Court of Protection, for Property and Financial Affairs and for Personal Welfare. Please contact us to discuss your own personal situation.