“Mental Capacity Act 2005 code of practice needs revisiting”
The Court of Protection has acknowledged that the Mental Capacity Act 2005 code of practice needs revisiting in relation to Personal Welfare Deputyships (PWDS).
What is a LPA/Deputyship?
If a person has mental capacity, they can make an LPA appointing people of their choosing to manage their property and finance and their health and welfare.
If a person does not have an LPA in place and does not have mental capacity (whether due to never having had capacity, illness or accident) then an application can be made for people to be appointed on the person’s behalf.
Why are PWD Deputyships so hard to gain?
As with LPAs, there are two different types of deputyships; a Property and Financial Affairs Deputyship (PFD) and a PWD.
In 2018 15,906 PFDs were applied for and 12,536 were granted (around 79%) whereas only 992 PWDs were applied for and just 403 granted (around 40%).*
The MCA Code of Practice states that PWDs should only be granted ‘in the most difficult cases’.
This guidance is particularly unpopular with parents of children who were unable to make LPAs due to never having full mental capacity (or losing mental capacity at an early age). These parents often feel excluded from making decisions for their children once they reach the age of 18 as the local council then assumes legal responsibility for the person’s welfare.
Re Lawson, Mottram and Hopton (2019 EWCOP22)
The recent case of Re Lawson, Mottram and Hopton dealt with three applications for permission to apply for the appointment of PWDs by the family members of three young adults. The preliminary issue was “What is the correct approach to determining whether a welfare deputy should be appointed?”
Hayden J found that whilst in most cases, he felt it was unlikely in the best interests of the protected person for a PWD to be granted, he noted that the code of practice is guidance, not statute, and each case should be considered on its individual merits. The paragraph in the code of practice seems to create a bias or starting point that PWDs should not be granted and Hayden J stated that this paragraph “requires to be revisited”.
It remains to be seen when or even whether the code will be revisited.
What else can be done?
If possible, get an LPA in place.
In cases where adults do have mental capacity and want their family members to have authority to be involved in their personal welfare, a Health and Welfare LPA should be considered as soon as possible.
If capacity has been lost (whether through accident or illness) or was never established (e.g. lack of mental capacity from birth) then parties should consider whether a PWD is appropriate and necessary or whether there are alternative ways in which they can be involved.
Rebecca Dixon is a solicitor in the private client department at Barker Gotelee, Ipswich solicitors.