Regularly, we see clients who wish to consider putting in place a financial document, in order that a family member may make financial decisions on their behalf in the future. Many clients are aware they can put a Lasting Power of Attorney (LPA) in place to appoint a deputy to help manage finances and property in the future, however, they are not always aware that there is another separate document that they can create in respect of decision making around their health and welfare.
The Importance of a health and welfare Lasting Power of Attorney
Karon Walton, Head of Court of Protection said: “My advice to clients would always be to consider creating both documents; however, in my opinion, I believe that the health and welfare LPA is the more important one to do.”
“If a financial LPA is not created, and the person loses capacity, then an application to the Court of Protection can be made. While an application may be time-consuming, it is likely to have a successful outcome in appointing a deputy for property and financial affairs. However, this cannot be said for a health and welfare appointment.”
The current code of practice in the Court of Protection states that a welfare deputy should only be appointed in ‘the most difficult cases’. This is because most people can have the decision made for them under Section 5 of The Mental Capacity Act 2005 (MCA) which is concerning care or treatment; and for it to be in their best interest if they lack the capacity to make their own decisions, to carry out the care or treatment.
Section 5 of the Mental Capacity Act states:
If a person does an act in connection with the care or treatment of another person (“P”), that before doing the act, the person takes reasonable steps to establish whether P lacks capacity in relation to the matter in question, and when doing the act, they reasonably believes that P lacks capacity in relation to the matter, and that it will be in P’s best interests for the act to be done.
How do the courts determine if a welfare deputy should be appointed?
Within the last month at the Court of Protection, welfare deputy appointments were considered by the Vice President Hayden J, where he looked at a preliminary issue as to what is the correct approach to determining whether a welfare deputy should be appointed.
Hayden J considered that there were clear principles in deciding to appoint a welfare deputy. He said that the starting point was the court’s twin obligation, which is to both protect the person and also to promote the person’s autonomy. The prevailing ethos of the MCA is to weigh and balance the many competing factors that will illuminate decision making.
He went on to say that the person’s wishes, feelings and beliefs, where they can be reasonably ascertained, are required to be considered. However, none of those factors is determinative, and the weight to be applied will vary from case to case in determining where the best interests lie.
The full case can be read here.
Is it in the person’s best interests?
The factors which are to be considered may well mean that the most likely conclusion in the majority of cases will be that it is not in the best interests of a person for the court to appoint a welfare deputy. However, this is not to be interpreted as a statutory bias or presumption against an appointment but as the likely consequence of the application based on a person’s circumstances.
One apparent implication of this judgment is that it will be necessary to explain in detail within the application for an appointment of a health and welfare deputy why the ‘collaborative and informal’ decision-making structure under Section 5 has not been serving the person’s interests and why a deputy should be appointed.
Due to the requirements of the health and welfare application, a large amount of information will need to be provided to the court, and best interest meetings should be held before any application is made, in which parties determine their positions.
Who will pay the application costs?
The other disadvantage to leaving the situation to chance is that the person, who may have to make an application about a health or social care decision, will have to pay for the application costs themselves unless the Judge departs from the general cost rule. This again is different from the cost rule in making a financial deputyship application, as generally, it is the protected party who will bear the costs, as directed by the court.
It is vital for people to consider their health and welfare wishes
The complexities around the application can put families off from making applications, so it is vital people consider their health and welfare wishes, get them down in an LPA, appoint an attorney and make sure that it is lodged with medical and social care organisations.