We know it is difficult to secure a welfare deputyship appointment. The numbers tell the story. In the first quarter of 2021, 2582 property and affairs deputyship orders were made (and 2986 applied for), and just 99 welfare deputyship orders were made (and 241 applied for).
A recent case highlights the importance of motive when seeking such an appointment.
The facts:
In YH v Kent County Council [2021] EWCOP 43 the court scrutinised the motives of CB’s sister, YH, in seeking to be appointed as her sister’s welfare deputy. The application was supported by the local authority, who had been on something of a journey with YH, but following some successful mediation was enjoying a greater level of trust with YH, and seemingly saw their support in this application as another way of advancing improvements in their relationship.
CB was a 28 year old woman with “learning difficulties, epilepsy and autism”, and some physical health issues. CB was represented by the Official Solicitor in this, the third set of proceedings litigated over a decade, concerning the appropriate care provision for CB. YH had been dogged in her support for her sister, and highly critical of the local authority, thus sadly (but not unusually) attracting the description of “obdurate and opinionated”. CB had sustained 2 unexplained fractures at the care home and was admitted to hospital. The Official Solicitor had instigated multidisciplinary meetings and further assessments leading to mediation. Finally, the local authority agreed that the plan proposed by YH for CB’s short term and longer-term care and living arrangements were indeed in CB’s best interests. This involved CB recuperating from surgery at YH’s home, with a view to CB eventually having her own home near the coast, with her own care team, and not returning to the previous care home (or any other care home).
So why was welfare deputyship refused?
- Be careful what you wish for.
Counsel for YH provided the court with a short list of what YH was seeking by way of an order:
“To decide what leisure and social activities CB should do. To make day to day decisions about whether CB should go to the GP and/or what referrals to specialists should be sought via the GP. To ensure that written and properly informed protocols are available to all of CB’s carers. To ensure proper records are kept by carers relating to the handover sheet information that have been in use since CB was placed with YH at home, such as liquid and food intake, skin colour, seizure activity, presentation, so that reliable information is provided to treating medical practitioners. To follow up referrals that are made for CB and not pursued by others. To pursue a care programme approach to CB’s medical care. To be invited to all MDT or other multi professional meetings, and to have input in advance, of the agenda of any such meetings. To be consulted in advance of any changes to CB’s care plan, including any proposed changes to the provider.”
It was acknowledged that on closer inspection, only the first two of these requests would actually involve some decision-making. Further YH acknowledged that if she was not present when such decisions needed to be made, she might advise, but could not actually make the decision for her sister.
This highlights the importance of careful drafting when seeking an order appointing a welfare deputy. You need to identify the range of decisions that may need to be made, and which will require a deputy to step up and step in. You also need to set out a thoughtful explanation of why those particular decisions cannot be made collaboratively on a best interests basis by the people on the ground, or referred to the court for a one-off decision.
- What motivates?
With the support of the local authority, we might be tempted to think that YH had a good chance of securing the welfare deputyship order she sought.
The Official Solicitor however opposed the appointment. It was not a question of whether YH would be a suitable as a welfare deputy (she was already CB’s property and affairs deputy). It was because YH wanted to be welfare deputy to give her “status and standing in her engagement with the social care and medical professionals involved in CB’s life”, and not to enable her to make decisions for CB.
YH perhaps deserves some sympathy in this, after a decade of locking horns with the professionals responsible for her sister’s care. Sometimes families find it hard to persuade the authorities to listen and to take on board the legitimate views of those who know the person best. However, this was not a proper ground on which to seek a welfare deputyship appointment under s16 of the Mental Capacity Act 2005 (MCA). The application was refused. However, the judge did go on to say he would be content for any order and indeed CB’s care plan to emphasise the importance of YH being involved in decision-making for CB – something which should happen as a matter of course (but often does not).
Welfare deputyship remains out of reach for so many families who have so much to offer to ensure decisions are truly made in the person’s best interests. Where the circumstances of the person are complex, particularly where decisions need to be made in the moment (and there is no time to refer to the Court) or where there is a series of decisions (for example about medical treatment) the court will consider welfare deputyship to be appropriate. But is remains important to be clear about what you are asking of the court and also to ensure your motivation is seen to fit clearly within the scope of s16 MCA.
Greenchurch Legal Services Ltd routinely assist families with applications of this nature. If you would like to discuss such an application, please contact us on 01782 214476 or by email [email protected]
