I am frequently asked by clients to consider whether they can be appointed to act as a Welfare Deputies on behalf of an incapacitated relative. Applications to appoint Property and Affairs Deputies are very common and often successfully made in the Court of Protection. That is because there is usually an intrinsic and urgent need to gain access to bank accounts or other financial institutions to ensure that an incapacitated person’s (P’s) affairs can be promptly administered on their behalf. The position with regards to Welfare applications is considered differently by the Courts.
When considering whether to appoint any Deputy (Property & Affairs or Welfare) the Court of Protection will have regard to s.16(4) of the Mental Capacity Act 2005 which states that:- in relation to a matter or matters concerning P’s personal welfare or P’s property and affairs and when considering whether it is in P’s best interest to appoint a Deputy the Court will have regard to the fact that:-
(a) A decision by the court is to be preferred to the appointment of a deputy to make a decision, and;
(b) The powers conferred on a deputy should be as limited in scope and duration as is reasonably practicable in the circumstances.
In the case of Re DC Senior Judge Lush stated that it is difficult to apply s. 16(4) of the MCA 2005 to property and affairs situations as there is “almost always a need for a deputy to carry out ongoing financial transactions which are often routine and rudimentary in nature and require little or no consultation with others”.
By contrast, in many personal welfare matters, the Court does not need to appoint a Welfare Deputy because “the decision-making is essentially a collaborative process between family members, care staff, social workers, healthcare professional and anyone else who has an interest in the welfare of the person concerned”.
Mr Justice Baker was cited in the case of G v E  COPLR as stating that “the Act and the Code are constructed on the basis that the vast majority of decisions concerning incapacitated adults are taken informally and collaboratively by individuals or groups of people consulting and working together. It is emphatically not part of the scheme underpinning the Act that there should be one individual who as a matter of course is given special legal status to make [Welfare] decisions”.
The Court of Protection is therefore often reluctant to appoint Welfare Deputies and is far more likely to consider a Welfare application if it relates to a specific and isolated issue that cannot be resolved by agreement with the wider care or treatment team.
It should be noted that most people applying for a Welfare order or determination will require permission from the Court to ensure that the application is “necessary and well-founded” a requirement highlighted by Senior Judge Lush in the matter of Re: DC. Applicants must be careful not to submit vexatious or malicious applications which are very unlikely to be granted permission to be heard. Examples might include families arguing about the best care home placement for an elderly relative not by reference to the elderly relatives best interests, but by reference to their personal convenience when visiting P at the proposed home.
It should be noted that the MCA 2005 offers protection to those involved in “acts in connection with care or treatment” under s.5 and is another reason why a Welfare Deputy is not usually required. Section 5 provides protection to those involved in the collaborative welfare decision making process affecting P and will extend to family members working with care staff, social workers and doctors, amongst others. To receive protection under s.5 the person carrying out the act “in connection with” the care or treatment must:
(a) before doing the act, take reasonable septs to establish whether P lacks capacity in relation to the matter in question and
(b) when doing the act, the person must reasonably believe
i. that P lacks capacity in relation to the matter, and ii. that it will be in P’s best interests for the act to be done.
s.5 (2) The person doing the act will not incur any liability in relation to the act that he would not have incurred if P:-
(a) had had capacity to consent in relation the matter, and
(b) had consented to the act being done.
Section 5 does not however exclude a person’s civil liability for loss or damage or indeed any criminal liability resulting from his or her negligence in doing the act.
The provisions of the MCA 2005 also extend to Welfare decisions undertaken by Health and Welfare Attorneys appointed under Lasting Powers of Attorney (LPA). It is often incorrectly assumed that a Health and Welfare Attorney will be the only person able to make decisions under a valid LPA.
However, in practice, many if not most of P’s welfare decisions where an LPA is in place will be undertaken by their direct care team such as carers in a care home, hospital workers or social services under the provisions and protection of s.5 MCA 2005. Those day-to-day decisions can be made without direct agreement or consultation from the appointed Welfare Attorney and of course, it would be impractical to obtain that consent for many aspects of day-to-day personal care.
A Welfare attorney will however ultimately be able to assert their authority and decision-making functions should they disagree with a course of action proposed by the direct care team. That is one benefit of considering executing a Health and Welfare LPA if you feel strongly about passing over decision making powers to a trusted individual involved in your care.