In situations where individuals lack the mental capacity to make decisions about their own health and welfare, navigating the legal landscape can be complex and daunting. One avenue for addressing these challenges is through the appointment of a Health and Welfare Deputyship.
In this blog post, I’ll explore what a Health and Welfare Deputyship is, the process of obtaining one, and what alternative options are available.
What is a Health and Welfare Deputyship?
A Health and Welfare Deputyship is a legal arrangement authorised by the Court of Protection. It grants a designated individual (known as a Deputy) the authority to make decisions on behalf of someone who lacks the capacity to make decisions about their own health and welfare. These decisions can encompass a wide range of matters, including medical treatment, residential care and social activities.
It can also be useful to ensure that your voice is heard when health and welfare decisions are being made, and that you are appropriately consulted by professionals.
It may, however, not be necessary in your circumstances. Most welfare decisions can be made without the need for Court oversight (see Best Interests decisions below) and a Health and Welfare Deputyship is generally only required in difficult situations such as where there is a history of disagreement or a series of linked decisions are required on an ongoing basis.
How hard is it to get a Health and Welfare Deputyship?
Obtaining a Health and Welfare Deputyship involves a rigorous application process overseen by the Court of Protection. The Court carefully considers the circumstances of the individual in question, including their capacity to make decisions and any existing arrangements for their care. While the process can be challenging, it is designed to ensure that decisions regarding the individual’s health and welfare are made in their best interests.
To apply for a Health and Welfare Deputyship, the following steps are typically involved:
1) Application
The prospective Deputy submits an application to the Court of Protection, providing details about the individual’s circumstances and the reasons for seeking Deputyship.
2) Assessment
The Court assesses the application, considering factors such as the individual’s capacity, their wishes and feelings (if known) and the suitability of the proposed deputy.
3) Notification
The Court notifies relevant parties, including the individual, close relatives and any other interested parties.
4) Decision
Following a thorough review of the application and any objections raised by interested parties, the Court decides whether to grant the Deputyship.
Alternative options to Health and Welfare Deputyship
While a Health and Welfare Deputyship provides a formal mechanism for decision making on behalf of individuals who lack capacity, there are alternative options that may be considered:
1) A Lasting Power of Attorney
Before losing mental capacity, individuals can appoint someone as their attorney through a Lasting Power of Attorney for Health and Welfare. This allows the attorney to make decisions on their behalf if they become incapacitated, without the need for court intervention.
2) Advance Decisions and Advance Statements
Individuals can make advance decisions (previously known as living wills) to refuse specific medical treatment in advance, and advance statements to outline their preferences for care and treatment. These documents provide guidance to healthcare professionals and loved ones in the event of incapacity.
3) Best Interests Decision Making
Most welfare decisions are made using this mechanism.
In the absence of formal legal arrangements, decisions about an individual’s health and welfare may be made by healthcare professionals and family members, following the principles outlined in the Mental Capacity Act 2005. This involves determining what is in the individual’s best interests based on their known wishes, beliefs and values.
This does not require any involvement of the Court or legal professionals.
Conclusion
Health and Welfare Deputyship serves as a vital mechanism for ensuring that individuals who lack mental capacity receive appropriate care and support. While the process of obtaining deputyship can be challenging, it provides a structured framework for decision-making under the oversight of the Court of Protection. However, alternative options such as Lasting Powers of Attorney, advance decisions and best interests decision making should also be considered based on individual circumstances.
Ramsdens Solicitors have experienced and knowledgeable legal professionals who are able to provide advice on Health and Welfare Deputyships, as well as all other issues within the Court of Protection arena.
If you would like to discuss this article, or require further information or advice, please do not hesitate to contact our Court of Protection Health and Welfare specialist Hanna Whitehead on 0344 3260049 or by email at hanna.whitehead@ramsdens.co.uk
The above article is for illustrative purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any part of the information given.