For family members or carers, witnessing a loved one struggle with their decision-making abilities can be incredibly challenging. While much attention is often given to managing a person’s finances in such circumstances, the ability to make choices about their daily care, medical treatment, and living arrangements is even more vital for their dignity and wellbeing. This is where the support of a personal welfare deputy can be an important and legally sound solution.
What is a personal welfare deputyship?
A personal welfare deputyship is a legal appointment made by the Court of Protection. Its fundamental purpose is to empower an individual to make decisions about the personal welfare of someone who lacks the mental capacity to make those decisions for themselves, often due to disability, illness or injury. Unlike a Lasting Power of Attorney (LPA), which is set up by an individual while they still have capacity, a deputyship is necessary when capacity has already been lost, and no relevant LPA is in place.
The decisions a personal welfare deputy can make are broad and directly impact the person’s quality of life. They can include choices about where the person lives, who they have contact with, their day-to-day care (such as diet and dress) and perhaps most significantly, their medical treatment.
The role of the Court of Protection and Mental Capacity Act
The Court of Protection is a specialist court in England and Wales that appoints deputies for people who lack the mental capacity to make their own decisions. It has an overarching supervisory role, ensuring that decisions are made in the best interests of the individual who lacks capacity.
The Mental Capacity Act 2005 establishes five core principles which must always be followed under a deputyship:
- A person must be assumed to have capacity unless it is established legally that they lack it
- A person is not to be treated as unable to make a decision unless all practical steps to help them to do so have been taken without success
- A person is not to be treated as unable to make a decision due to the choice they have made
- Any decision made under the Act must be in the best interests of the person who lacks capacity
- Regard must be had to ensure the decision made is the least restrictive of the person’s rights and freedom of action.
For a personal welfare deputy, principle 4 is particularly crucial. It requires the deputy to consider all relevant circumstances, encourage the individual’s participation as much as possible, and not base decisions on assumptions about their age, appearance or condition.
What decisions can a personal welfare deputy make?
As discussed, a personal welfare deputy is a person or body appointed by the Court of Protection with the legal authority to make ongoing decisions about the health and personal care of someone who lacks capacity. Unlike a one-off order that the Court might make for a specific decision, a deputyship provides continuous authority for a range of decisions. These commonly include:
- Where the person lives, including moving into a care home or receiving care at home
- Day-to-day care, including diet, dress and personal care
- Consenting or refusing medical treatment on behalf of the person in consultation with healthcare professionals
- Deciding who the person has contact with
- What leisure and social activities the person takes part in
- Making and conducting complaints on the person’s behalf about their care or treatment
A deputy’s authority is specific to the powers granted by the Court of Protection order and decisions cannot be made outside of these powers.
Who can be appointed as a deputy?
The Court of Protection prefers to appoint someone who knows the person well and has their best interests at heart. Common appointees include family members or close trusted friends who understand the person’s wishes and needs.
In some cases, the Court may appoint a professional deputy, such as a solicitor, accountant or local authority.
The Court will assess the proposed deputy’s suitability, ability to manage the responsibilities and any potential conflicts of interest.
What are the benefits and limitations?
As a personal welfare deputy, you have the legal authority to make necessary decisions when no LPA is in place. A deputyship protects vulnerable individuals, ensuring that decisions are made in the best interests of the person under the supervision of the Court. It also offers reassurance that a trusted individual has the legal authority to manage personal care needs.
It is important to note that the process of applying for a deputyship can be lengthy, costly, and involves ongoing supervision by the Court of Protection (including annual reports). Deputyship is generally considered a last resort option by the Court, with LPAs if/when a person has capacity being the preferred route.
How we can help
At Peter Ross, our specialist team understands the nuances of personal welfare deputyship and is here to provide expert, compassionate guidance.
If you are concerned about a loved one’s welfare and their ability to make decisions, or if you need assistance with an existing deputyship, please do not hesitate to contact us.
We are dedicated to providing clear, accessible legal support to protect the best interests of vulnerable individuals and their families, and can advise on preparing and submitting deputyship applications.