When should a health and welfare deputy be appointed?

Deciding to appoint a deputy for health and welfare for your family member will always be a difficult decision. The Court has been reluctant to make appointments reserving these for only the most ‘difficult’ cases. In this post we consider the guidance given by the court on this issue and how recent case law has changed this.

General Principles

The Mental Capacity Act 2005 Code of Practice (‘The Code’) suggests a deputy for health and welfare should only be appointed when ongoing decisions need to be made on behalf of your family member who lacks capacity.

It is important to remember that deputies should only ever be appointed to make decisions which your family member lacks the capacity to make. The Code is clear that a deputy’s authority should be as limited in scope and duration as possible. The starting assumption must always be that your family member has the capacity to make a decision unless it can be shown that they lack capacity. This means that your family member’s capacity must be assessed on a decision by decision basis and. all possible steps must be taken to support your family member in making decisions themselves.

Recent case law – Haden J’s principles

Hayden, J recently considered the appointment of health and welfare deputies in Re Lawson, Mottram and Hopton. In his view the prevailing ethos of the Mental Capacity Act 2005 is that decisions about whether to appoint a health and welfare deputy should be made based on the merits of doing so in each case. You should not therefore be put off from making an application to appoint a health and welfare deputy for your family member if you feel that this would be in their best interests.

Hayden J also emphasised that your family member’s wishes and feelings should form part of the appointment decision. You should therefore try to ascertain from your family member what their wishes and feelings are as the court will take these into account.

Hayden J’s message is clear:

  • Extended legal authority to make decisions about your family member’s health and welfare should not be handed to one person unless absolutely necessary.
  • A deputy will not have authority to make a decision for your family member if they can make the decision themself.
  • When making an application to appoint a health and welfare deputy for your family member you will need to give clear justification as to why a less formal decision making structure is not in their best interests. You should not however be put off from making an application if the justification is there. You should not make an application on behalf of your family member because you feel excluded from decision-making as the court will not consider this sufficient justification to appoint a deputy for them. You should consider in the first instance whether your family member can be supported in decision making about their health and welfare.

    How can Moore Blatch help?

    We regularly advise family members on health and welfare deputyships and any alternative options those closest to the individual are able to participate in decision making.

    For more information, or a free no obligation chat, please contact us on 02380 71 8108 and ask to speak to a member of the team.