If someone loses capacity without having a valid Lasting or Enduring Power of Attorney in place, then those seeking to make decisions will need to apply to the Court of Protection for the authority to make decisions on their behalf. There are several types of a decision that the Court of Protection can make. Please see my blogs: A Guide to the Court of Protection - Property and Finance Deputyships and Statutory Wills: A Brief Guide for an overview of two types of decisions that can be made by the Court of Protection. This blog however will focus on the unicorn of all Court of Protection applications: Health and Welfare Deputyship applications.
The Court treats applications in relation to health and welfare with a very different touch. These are the applications which make their way into the headlines, and cover decisions about where someone should live, what care they should receive, whether they can be moved to a different jurisdiction to receive treatment and who should make decision about ongoing care.
As with all applications to the Court of Protection, the overarching rule is that decisions must be made in the best interest of the incapacitated person (usually referred to as P). The Court takes the approach that it should be a final port of call, and should only be involved in the most serious of cases where professionals and family cannot come to an agreement, or where the course of action that is required is so serious that the Court’s authority is required. Some examples of recent cases are:
East Lancashire NHS Trust v PW- PW was a paranoid schizophrenic and was not deemed to have the capacity to consent to the amputation of his leg (caused by diabetes related sepsis).
B v A Local Authority- B was a young girl with severe learning disabilities. The court was asked to decide on whether or not she should be allowed to use social media and the internet. Up to the point of the application she had been using social media to make “friends” through Facebook, some of whom were registered sex offenders, and had been sending indecent photographs.
Lawson, Mottram & Hopton- this was in fact an open application by parents who each had a child with severe learning difficulties. The parents wished to be appointed as Deputies for their children’s health and welfare, as their current authority would end once their children reached the age of 18.
Lawson, Mottram & Hopton is of particular significance. As stated above, the Court has taken the stance that it should be approached in only the most serious cases. The general direction is that applications should be made to the court for specific directions on a chosen course of action, and that any authority will be limited in scope to that specific decision. The Court have always been very hesitant to appoint deputies to make ongoing decisions about P’s welfare. They will appoint someone to make a series of decisions in relation to a set course of action, but generally shy away from giving authority generally for P’s welfare.
Instead, the Court take the approach that decisions should be made by the health care professionals responsible for P’s day-to-day care, in conjuncture with P’s family. In the case of Lawson, the court reiterated this point, and further added that welfare deputyships should not be used as a means of extending parental responsibility beyond the age of 18.
If it is appropriate to make an application to the Court, the process can be progressed quite quickly if the application is urgent. It is however important to bear in mind the costs of the application which can quickly mount up and which are likely to include: court fee (£365), hearing fee (£485) solicitors costs (calculated per hour but likely to be several thousand pounds) and barrister’s fees; this will vary depending on the nature of the application. If a hearing is needed, then this can easily enter the tens of thousands of pounds. Because of the possible level of costs, we will always examine the strength of the case before advising someone to proceed with an application.
Each case will revolve on its own facts, and in some cases it will be appropriate to make an application in relation to P’s welfare, however caution should be exercised when looking for general authority over welfare decisions (such as the authority that can be granted by a capacitous donor under a Lasting Power of Attorney for Health and Welfare). If you would like to discuss your circumstances, please contact Ashley Minott for further advice.
Further information regarding Health and Welfare Lasting Powers of Attorney can also be found here.