For many years now, anyone mentally capable of creating a Lasting Power of Attorney (“LPAs”) has had the option to create two types. One is over financial matters and the other is over ‘Health and Welfare’ decisions.
If someone has become mentally incapable of creating LPAs then the only option is to apply to the Court of Protection for what is termed a ‘Deputyship’. The application is made by the people willing to be appointed to manage the affairs of the incapable person.
A high proportion of applicants for a financial Deputyship will be successful and the court will likely appoint them. It is possible to apply for a Deputyship over someone’s health and welfare matters but, in marked contrast to financial applications, for many years it has been very difficult to be successful in a welfare Deputyship application. It appears that the court may have changed its approach to such applications recently. But it has not done so to the extent of making welfare Deputyships as likely to obtain as their financial equivalent.
Any potential applicants for a welfare Deputyship should be very aware from the outset of the chances of success, in what sorts of circumstances the court is more likely to look favourably on an application and what information the court must see to increase the chances of success. It remains the case, as it has been for many years, that the court is very reluctant to give an applying Deputy broad and general authority over the incapable person’s health and welfare.
What is more likely to succeed is an application to deal with a specific issue or where a specific decision needs to be made, always in the incapable person’s best interests. The court is also more likely to consider an application that shows a series of linked decisions will need to be made over time and that it would be in the incapable person’s best interests for there to be consistency and continuity by having the same person making them.
In every application, it is pivotal to demonstrate that the applicants are acting entirely in the incapable person’s best interests and that the order the court is being asked to make will further those interests. Equally, applicants will need to involve every other agency involved in the incapable person’s care. There can often be many such parties: Social Services; social workers; doctors; residential or education authorities; and more. The court will want to see that all such bodies are aware of what is being proposed and it would be unwise to start an application without the approval of such bodies. An objection or challenge from any one could easily make the application unsuccessful.
It seems fair to say that the court’s recent change of approach is perhaps to make it clear there is no longer a presumption against appointing welfare Deputies. While that is significant and welcome it remains the case that anyone wanting to apply for a welfare order needs to think carefully about what they are asking for and how to show the court that the incapable person’s interest are at the heart of the application.
For further advice, please do contact a member of the Private Wealth Team using the contact details below.
