The Court of Protection has recently provided new guidance which may make it easier for parents to be appointed as their adult child’s Personal Welfare Deputies. In circumstances where they suffer from learning difficulties.
Mental Capacity Act (2005)
Under the Mental Capacity Act (2005), parents are able to make decisions for their children while they are under the age of 18. However, once they turn 18, decisions are then made on a “collective” basis by those interested in their welfare. This of course may include more than just their parents. They are then designed to ensure an adult has a personal stake in the welfare decisions. Rather than this being taken over for them by another by function of a Court Order.
In order for a person, or persons, to be able to make decisions for someone who is mentally incapable of making those decisions for themselves, the Court must appoint that person as a Health & Welfare Deputy for the individual lacking capacity. However, the Court has historically been reluctant to do that. As the Code of Practice operating alongside the Mental Capacity Act states that such Deputy appointments should only be made “in the most difficult cases”. This guidance has historically made it quite difficult for parents or other family members to obtain a Deputyship Order.
Crowdfunding Test Case
However, a recent crowdfunded test case, which consisted of three joint appeals by parents of young adults with learning disabilities, has caused the Court of Protection to clarify matters. To then provide additional guidance as to how the Mental Capacity Act should be interpreted.
The Judge decided that the guidance referred to above should no longer be the starting point and should be revisited. The Court referred to the wording in the Mental Capacity Act. In which it is made clear that the “twin obligations both to protect P and promote his or her personal autonomy remain central throughout”.
The Court’s conclusion therefore was that while the structure of the Mental Capacity Act could mean that in a lot of cases it would not be in the person’s best interests for a Personal Welfare Deputy to be appointed. Due to seeking to protect and promote their personal autonomy. There certainly should not be a bias against making an appointment. The Court should consider matters with an open mind. To not enter into a case presuming the appointment of a Deputy is unfavourable. This may make it easier in future for parents to obtain a Welfare Deputy Order for a vulnerable adult child.
The Court did however make clear that it will continue to seek to promote an adult’s personal autonomy over their own welfare. They made the point that it is entirely natural for a parent of a vulnerable person to wish to extend their parental responsibility beyond the age of 18. That care must also be taken by the Court to guard against this intruding on the individual’s rights to make their own decisions. The Judge in particular remarked that “Imposing an overly protective legal framework risks inhibiting the individual’s personal development”. That it could fail to properly nurture their potential.
Mental Capacity Code of Practice
The Mental Capacity Code of Practice is currently being reviewed by the Ministry of Justice and changes are expected to be revealed later this year.
In additional to Personal Welfare Deputies, a Deputy can be appointed to manage a person’s financial affairs if they are incapable of doing so themselves. This attracts a different set of questions and considerations. The process of obtaining such an Order can be complex and take several months.
If you would like further advice on either type of Deputyship, please contact us, or alternatively please complete the contact form below.
Please note that this article does not constitute legal advice. You should always speak to a legal professional to discuss your circumstances and consider your options.