Gaining Deputyship for a Person's Health & Welfare

It is worth noting that if a person has not made a LPA Health & Welfare and then loses mental capacity it is very difficult for a family member to gain deputyship over that persons personal welfare.

S.16 of the Mental Capacity Act 2005 (MCA) provides that the Court of Protection may appoint someone to act as personal welfare deputy to an individual lacking relevant capacity.  It should be stressed at the outset that personal welfare deputy appointments are rare.

From October 2007 to December 2009, the Court received 39,579 property & affairs applications and 2734 health and welfare applications.  The majority of the property applications were to appoint a 'property and affairs' deputy that resulted in 18,307 actual appointments.
The Court has received much less welfare applications:

In the 2 year period from Jan 2008 to December 2009, the Court of Protection only made 195 such appointments in 2,695 cases where personal welfare applications were made, so refusing up to 80% of these applications.

In 2010, 106 personal welfare deputy appointments were made, in which around 70% of applications were refused.

This low number is in-line with sections 8.31 and 8.38 of the Code of Practice

Under the heading 'What are the rules for appointing deputies?' The Code of Practice gives the following guidance:

'8.31 - Sometimes it is not practicable or appropriate for the court to make a single declaration or decision.  In such cases, if the court thinks that somebody needs to make future or ongoing decisions for someone whose condition makes it likely they will lack capacity to make some further decisions in the future, it can appoint a deputy to act for and make decisions for that person.  A deputy's authority should be as limited in scope and duration as possible . . . '

The Code of Practice also provides specific guidance as to the circumstances in which it may be appropriate to appoint a personal welfare deputy:

'8.38 - Deputies for personal welfare decisions will only be required in the most difficult cases where:
Important and necessary actions cannot be carried out without the court's authority, or
there is no other way of settling the matter in the best interests of the person who lacks capacity to make particular welfare decisions'

As far as welfare decisions are concerned the Court are very reluctant to appoint a Deputy.  It is imperative that you make an LPA Health & Welfare, otherwise healthcare professionals could make decisions about your care that your family are not in agreement with.

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