Success! How our specialist COP team secured Court of Protection Health and Welfare Deputyship Order for a local family.
A Deputyship Order is issued when someone lacks the necessary mental capacity to make decisions for themselves and they have not made a Lasting Power of Attorney. There are currently only a few hundred Health and Welfare Deputyships issued in England and Wales every year.
The Court of Protection historically disliked appointing health and welfare deputies and preferred a more multi-disciplinary approach to care decisions for incapacitated individuals. In more recent years, the Courts approach has changed slightly to being more considerate of each case on its own merits.
In a series of cases brought before the Court of Protection in 2019 (Re Mottram, Re Lawson and Re Hopton), the question of why it is so difficult to secure a Health and Welfare Deputyship order was heard. The Official Solicitor argued it that the appointment of a Health and Welfare Deputy is unlikely to be in the best interest of the person who lacks capacity. This is due to the restrictive nature of the Deputyship, and the need for the person who lacks capacity to have input into their life.
The Mental Capacity Act Code of Practice states that Deputies for personal welfare decisions will only be required in the most difficult cases, and it provides very few specific examples of this.
However, in a recent successful case for the firm, Nadia Kelley, Senior Associate in our Court of Protection team, highlighted to the Court, the importance of the need for the family, who had extensive and life-saving knowledge of their child’s medical history, to continue to make these decisions for their now adult child. The evidence was clear that only they were able to make a series of linked health care decisions for them to preserve and maintain their child’s quality of life and to avoid unnecessary suffering.
The process was a long one, consisting of many hours of evidence gathering, Court applications, amendments, witness statements, counsels advice but finally, in July 2024, the Order was granted by the Judge who agreed that this was in the best interests of the individual in question.
This represented a tremendous success for the family, who have now been given the legal authority to ensure their son is cared for in the best possible manner and alleviates a lot of the stress and worry they had previously endured. They now not only have a voice for their child as his parents, but as his Court appointed representatives.
If you, or a family member, are in the position of needing to apply to be somebody’s Deputy, or you feel that there may be sufficient grounds for a Health and Welfare Deputy to be appointed, WBW Court of Protection team can advise you and help you to secure the best possible outcome. Please feel free to contact us.
