If you have a loved one who has lost the mental capacity to make decisions for themselves and you’re looking to make important decisions on their behalf, you will need to apply to the Court of Protection for a deputyship order. This is the only option available for someone to gain authority over a loved one’s affairs if they have lost mental capacity and did not have a Power of Attorney in place prior to losing capacity.
What are the different types of deputyship orders?
There are two types of deputyship order: one relates to property and financial affairs; the second relates to personal welfare, which covers everything from medical treatment to how someone is looked after. Obtaining a personal welfare deputyship order might be very useful if a family member is affected by severe learning disabilities, dementia, a serious brain injury or illness, for example.
How are decisions made if there is no personal welfare deputyship order in place?
In order to make a decision, a ‘best interest meeting’ is organised with all the teams involved with the incapacitated person’s care. Present at the meeting would normally be the person’s GP, the manager of the person’s care home (if applicable), family members and other specialists involved in the person’s care. These meetings can take months to organise and unfortunately this can leave people without proper medical treatment, adequate care or an appropriate place to live.
How can I maintain decision-making authority when my child turns 18?
A problem often occurs when a child who lacks mental capacity and has complex needs turns eighteen. Whilst the child was a minor their parents had parental responsibility and made decisions on their behalf. When the child turns eighteen the parents lose the authority to make decisions on their child’s behalf. They can then find themselves in conflict with medical professionals and care providers. However, if the parents obtain a personal welfare deputyship order then they can retain authority to make decisions in their child’s best interests.
Is it easy to get a personal welfare deputyship?
Historically, it has been far easier to obtain a property and affairs order than a personal welfare order. The Court of Protection have been reluctant to make personal welfare orders on the basis that everyone involved in the care of the incapacitated person should make decisions in their best interest. It was thought inappropriate for one individual to have the sole responsibility for health and care decisions.
Only about 375 personal welfare deputies are appointed each year, compared to an average of around 15,000 property and affairs deputies.[1]
Fortunately, we are starting to experience a shift in the Court of Protection’s approach to granting deputyship orders. The Court of Protection has pronounced that The Mental Capacity Act 2005’s current code of practice needs revisiting, where it suggests that personal welfare deputies should only be appointed in ‘the most difficult cases’.[1] Each case will be decided on its own merits and will consider whether it is in the person’s best interests to have a personal welfare deputy. The wishes and feelings of the person to whom the application relates should also be taken into account.
Do you need legal advice?
If you would like to receive further advice on applying to be a personal welfare deputy, please contact Pavinder Bahia, our private client solicitor at our Solihull office.
