No statutory bias against parent's appointment as adult child's welfare deputy
By Nicola Laver
There is no statutory presumption against the appointment of a parent or other family member as an adult child’s personal welfare deputy.
The Court of Protection has provided important clarification as to the correct approach when considering whether to appoint a personal welfare deputy for young adults with learning difficulties.
The court also called for a change in the guidance on applying the Mental Health Act 2005 (MCA). The case of Lawson, Mottram and Hopton, Re (appointment of personal welfare deputies) (Rev 1) [2019] EWCOP 22 was a test case on the interpretation of the law, and has wider implications for vulnerable adults.
The court heard three conjoined appeals brought by the parents of young adults who have learning disabilities.
They were seeking permission to apply for the appointment of personal welfare deputies (PWD) under section 16 of the MCA.
The parents, whose case was crowdfunded, argued for a law change enabling parents to be more easily appointed a welfare deputy for their children on reaching adulthood.
The MCA allows parents to make decisions for children who lack capacity in their childhood. When they reach 18, future decisions on their behalf are made collectively by those interested in their welfare.
Parents have the right to apply to be appointed as a PWD – and to have a sibling or other individual appointed – but the appointment of deputies is restricted under the MCA’s accompanying Code of Practice which says such appointments should only be made "in the most difficult cases”.
It can effectively put the brakes on applications by parents. However, Hayden J said this guidance should not be the starting point and should be revisited.
Instead, the starting point in evaluating any application for the appointment of a PWD is by reference to the clear wording of the MCA that there are “twin obligations both to protect P and promote his or her personal autonomy remain central throughout”.
He concluded that whilst the structure of the MCA could mean that, in most cases, it will not be in the best interests of a protected person for a PWD to be appointed, “this does not mean there is a statutory bias or presumption against appointment”.
But he added: “The extension of parental responsibility beyond the age of eighteen, under the aegis of a PWD, may be driven by a natural and indeed healthy parental instinct but it requires vigilantly to be guarded against.
"Imposing an overly protective legal framework risks inhibiting the individual’s personal development and fail to properly nurture their potential.”
The judge rejected the parents’ argument that the law was contradictory or confused; rather, it has “evolved and refined as the Court has had to address the challenging and diverse issues that have come before it”.
The MCA Code of Practice is already under review by the Ministry of Justice and it is expected that a new Code will be laid before Parliament later this year.
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