The Mental Capacity Act 2005 made it possible to appoint someone to make welfare decisions on behalf of an individual who did not have sufficient mental capacity to make the decisions themselves. These decisions can include those concerning medical treatment, where someone lives, etc.
There are two ways in which someone can be appointed to make welfare decisions for another person. The first option is for them to be appointed as their Attorney under a Health & Welfare Lasting Power of Attorney (LPA) by the person whilst they still have capacity. The second option, is to apply to the Court of Protection to be appointed as the person’s Welfare Deputy. A Deputy can only be appointed where the person lacks capacity to decide for themselves or to make a LPA.
If there is no Attorney or Deputy then the Act requires all decisions to be taken on a collaborative basis. This involves discussions between medical practitioners, social services, care providers and the person’s family.
In all cases, any decisions taken must be made in the person’s best interests.
The role of a Welfare Deputy
The Act is accompanied by a Code of Practice, which states that a Welfare Deputy should only be appointed in “the most difficult cases”. This has been taken to mean that, as a matter of course, applications for Welfare Deputies would be discouraged.
The Court of Protection has recently stated that the guidance does not mean that Welfare Deputyships are rarely available – one can be appointed if there is a “strong case”.
Often people worry about their loved ones’ health and welfare. This may be when a disabled child reaches age 18 and the parents lose the ability to make decisions for them, or when an elderly relative loses mental capacity due to a condition such as dementia.
The Court have been clear that a desire to look after someone does not mean that a Welfare Deputy is automatically in someone’s best interests and that a strong case will need to be put forward and should consider the person’s past and present wishes, their beliefs and values and the views of other people involved in their care. They must also show why a Deputy is better for the person than collaborative decision-making.
How can Nelsons help?
If you feel that a loved one or close friend needs a Welfare Deputy or you want to ensure that a specific person(s) will be able to take welfare decisions for you, should you lose mental capacity in the future then please call 0800 024 1976 and ask to speak to a member of our Court of Protection team in Derby, Leicester and Nottingham or alternatively get in touch via our online form.