What is a Personal Welfare Deputyship Order?
A Personal Welfare Deputyship Order is an Order granted by the Court of Protection giving an individual authority to make personal welfare decisions in respect of somebody who lacks capacity to make those decisions themselves.
These decisions might include where that person lives, the type of care and medication they receive and what they eat.
Personal Welfare Deputyship Orders are incredibly rarely granted by the Court. The Code of Practice to the Mental Capacity Act 2005 (which governs when Personal Welfare Deputyship Orders should be allowed) currently states that the Orders should only be granted in the most difficult of cases.
The thinking behind this is that the Court should be very reluctant to give one individual authority to make such important and intimate decisions regarding another. Rather, everybody involved in the care of the person who lacks capacity should make decisions in their best interests.
Best interest decisions
However, this system leaves some of the most vulnerable people in society without anybody who is legally authorised to make important decisions on their behalf.
In order to make a decision in a person’s best interests, a Best Interest Meeting is organised with all the teams who are involved with the individual’s care. This might include their parents or closest family members, social services, GP, specialist medical professionals, the manager of the care home they live in, the CCG responsible for making financial provision for that individual’s care and so on.
It can take several months to gather this specialised group of people. In the meantime, the individual could be left without treatment, sufficient care provision or even somewhere appropriate to live.
Parental Responsibility and The Court Of Protection
Consider this in the context of parents to adult children who lack capacity, and often have associated complex needs.
As a parent you have parental responsibility for your children under the age of 18. This means you can consent to treatment on their behalf, decide where they live, what they eat and what social activities they take part in. As soon as your child reaches the age of 18, you are no longer authorised to make decisions on their behalf, even if they lack capacity to make decisions themselves.
Instead, you are required to attend the Best Interest Meeting described above, and are one of a number of voices in a room. Whilst you wait for the meeting to take place, you have to watch your child go without treatment or suitable care provision.
However, if you are appointed a Personal Welfare Deputy for your child, you get back the authority you lost when your child turned 18. You can consent to treatment, liaise with social services and the CCG to decide what care they need and what funding they are entitled to receive. You can demand that they are given sufficient care provision to allow them to leave their residence at least twice a week to take part in social activities. You can ensure their care provider is giving them a healthy and varied diet. The list is endless.
Whilst Personal Welfare Deputyship Orders are rarely granted, we are seeing a change in the Court’s attitude. If you are the parent of a child who has never had capacity to make welfare decisions themselves, the Court is becoming more likely to seriously consider your application to be a Personal Welfare Deputy.
We have successfully represented clients who have been appointed Deputies in these circumstances in the past few years.
If you or somebody you know requires advice in this area, please contact Claire Woolliscroft from our Court of Protection Team.