Re HB: Court of Appeal clarifies the approach to personal welfare deputyships

The Court of Appeal has handed down an important judgment on the appointment of personal welfare deputies in Re HB (Appointment of Personal Welfare Deputy) [2026] EWCA Civ 960.

The judgment provides welcome clarification for families supporting adults who lack capacity to make decisions about their welfare. In particular, the Court has made clear that there should be no presumption against the appointment of a personal welfare deputy. The key question to ask is whether, in the particular circumstances, the appointment is in the best interests of the person who lacks capacity (“P”).

The background

HB is a 22-year-old man who lacks capacity to make decisions concerning his personal welfare.

His parents applied to be appointed as his personal welfare deputies so they could continue to support him as he entered adulthood.

The application was refused by the Court of Protection. The judge considered that collaborative decision-making between HB’s parents and professionals had worked in his best interests and that, where significant disagreements arose, the Court of Protection should make the decision rather than appointing his parents as deputies.

The Court of Appeal disagreed and unanimously allowed the appeal. 

What has the Court of Appeal clarified?

The Court identified a number of features which may support the appointment of a personal welfare deputy, namely:

• where the proposed deputy has a special relationship with P, including a particular ability to understand and communicate with them
• where P’s wishes, feelings, beliefs and values are likely to be better recognised through the appointment
• where it is anticipated that a stream of welfare decisions will need to be made in the foreseeable future
• where P is moving from childhood to adulthood and transitioning between children’s and adult services
• where there is evidence that the Mental Capacity Act framework, including appropriate consultation with family members, has not operated effectively
• where decisions need to be made promptly and flexibly

The Court was careful not to suggest that any one of these factors will automatically justify appointment. They form part of the overall assessment of what is in P’s best interests.

Can a deputyship promote autonomy?

One of the more significant aspects of the judgment concerns the concept of autonomy. The first-instance judge had considered that appointing HB’s parents would be an unnecessary infringement of his autonomy as an adult.

The Court of Appeal took a different approach and recognised that appointing a deputy may actually enhance rather than diminish P’s ability to influence the course of their life. For someone who cannot communicate through conventional means, a person who knows them exceptionally well may be particularly well placed to support their participation in decisions. 

This was particularly relevant to HB, whose parents had learned his individual cues and manner of communication.

What does this mean moving forward?

Re HB is an important and welcome clarification of the approach to personal welfare deputyships.

Historically, such deputyships have been difficult to obtain and have often been regarded as an exceptional step. The Court of Appeal has now made clear that there should be no presumption against appointment. The focus should instead be on whether, in P’s particular circumstances, a deputyship is in their best interests.

This does not mean that personal welfare deputyships will become routine. The Mental Capacity Act 2005 safeguards remain important and the Court must continue to consider P’s best interests, participation and the least restrictive option.

However, the judgment provides a more positive and flexible framework for families who may previously have considered formal welfare deputyship to be out of reach.

Ultimately, Re HB makes clear that the question is not simply whether decisions could be made collaboratively. The Court must consider whether, in P’s particular circumstances, appointing a deputy would provide abetter means of supporting P’s best interests and participation in decisions about their life.

If you are considering making a deputyship application and require assistance, please do get in touch with our Court of Protection Team on 01603 610911 or info@leathesprior.co.uk.