By Sophie Lawrence, Senior Associate and Head of Court of Protection, and Shelby Gordon, Trainee Solicitor.
When a loved one loses the mental capacity to make decisions about their health or personal welfare, it can be an overwhelming and emotional challenge for families. The legal barriers to stepping in and helping, even with the best intentions, can feel insurmountable. In these situations, applying to the Court of Protection for a Health and Welfare Deputyship, when successful, can provide the legal authority needed to protect and advocate for the vulnerable person’s best interests, which can provide peace of mind.
In this article, we explain the critical role of a Health and Welfare Deputyship Order. Through a real-life case study, we demonstrate how this legal authority, granted by the Court of Protection, empowers families to secure the best interests of a vulnerable adult regarding their health and personal welfare.
What is a Health and Welfare Deputyship?
A Health and Welfare Deputyship Order allows for the appointment of Deputies, in which the Deputies are then able to make decisions on behalf of a person who lacks the mental capacity to do so for themselves.
These decisions can include:
- Day-to-day care arrangements.
- Obtaining and reviewing medical records.
- Making complaints about the standard of care or treatment received.
- Attending medical appointments with the person.
- Providing consent to or refusal of medical treatment.
What Happens If There Is No Deputyship or Lasting Power of Attorney in Place?
In the absence of a Health and Welfare Deputyship Order, and a Health and Welfare Lasting Power of Attorney (LPA), when a person lacks mental capacity to make decisions for themselves, the ultimate decisions are left with the Local Authority and/or medical professionals. It is important to note that the next of kin or family members do not have automatic legal authority to make these decisions.
The Deputyship Order does not take away the Local Authority’s duty to look after the person and they will still be required to meet the person’s needs.
Case Study: Achieving a Positive Outcome Through the Court of Protection
Health and Welfare Deputyship applications are known to be complex and difficult to secure. They require a well-constructed argument supported by strong legal reasoning and detailed factual evidence.
The Family's Challenge
This case involved our clients’ child with a neurological and developmental disorder. The family had been faced with many challenges when attempting to assist their child in their welfare matters, due to their lack of legal authority to participate in these decisions. Including a situation where the family attempted to object to medical surgery, of which they received very short notice, and they believed was not be in their child’s best interests. This objection carried little legal weight with the medical team.
The family were also struggling to be heard by the Local Authority in respect of the living arrangements that they felt were not in the best interests of their child. The living arrangements were initially not run past the family, in which they could have picked up the obvious unsuitability. This was sadly causing the child significant emotional distress.
Securing Legal Backing
Following these events, the family recognised the need for legal backing to ensure the child’s welfare was protected. They decided to pursue a Health and Welfare Deputyship application with the Court to ensure they would be consulted on all important medical decisions and have the legal authority to advocate on their child’s behalf.
Our Involvement
With our professional support, the family commissioned an independent capacity assessment on the child and submitted a robust application to the Court of Protection. We carefully drafted the necessary documentation and legal arguments to demonstrate why it was in the child’s best interests for the family to be appointed as Deputies.
The Successful Resolution
The Court reviewed the evidence and approved the application, granting the family a Health and Welfare Deputyship Order. This outcome empowered the family to make welfare decisions in the best interest of the child, ensuring their voice would be legally heard.
This is one of many examples of how the Court of Protection provides essential support, enabling families to make a meaningful difference in the lives of vulnerable individuals.
How We Can Help
In Blanchards Bailey, our specialist Court of Protection team provides clear, compassionate and practical guidance to individuals and families who need help making decisions on behalf of someone who lacks capacity.
We are here to support you every step of the way.
For expert guidance, please contact Sophie Lawrence:
- Telephone: 01258 488227
- Email sophie.lawrence@blanchardsbailey.co.uk
- Online: Visit our Court of Protection page for more resources.
So, how can we help?
Whatever your requirements, our team is standing by.
Call us today on
01258 459361