Re HB: a new framework for welfare deputyships

The Court of Appeal’s decision in Re HB (Appointment of Personal Welfare Deputy) [2026] EWCA Civ 960 provides the most authoritative guidance on personal welfare deputyships since the Mental Capacity Act 2005 (MCA) came into force. In a judgment likely to influence both litigation strategy and public body decision-making, the Court revisited a number of assumptions that have shaped welfare deputyship applications for almost two decades.

HB is an adult who lacks capacity to make relevant welfare decisions. His parents applied to be appointed as his personal welfare deputies, contending that they were best placed to coordinate decisions relating to his care and overall welfare. The Court of Protection refused the application, noting the history of collaborative working between professionals and the family and expressing concern about extending parental decision-making authority into adulthood.

The Court of Appeal unanimously allowed the appeal, identifying a number of factors capable of supporting the appointment of a welfare deputy, including a special relationship with the individual, an ongoing stream of welfare decisions, difficulties arising during the transition to adulthood, shortcomings in the application of the MCA framework and the need for responsive decision-making. Although the Court did not create a presumption in favour of welfare deputyship, it significantly reshaped the analysis that should underpin such applications.

Reassessing the existing approach

For many years, welfare deputyship applications have traditionally been considered against a backdrop of judicial caution. Practitioners will be familiar with the prevailing view that welfare decisions should ordinarily remain with professionals operating within the MCA framework, with recourse to the Court of Protection on an issue-specific basis when disputes arise.

In Re HB, the Court of Appeal drew a clear distinction between the MCA itself and the restrictive approach that has evolved through case law and practice. The legislation contains no presumption against the appointment of a personal welfare deputy. Instead, sections 16 and 19 confer a broad discretion on the court to appoint a deputy where doing so is in the person’s best interests and represents an appropriate means of facilitating decision-making.

A key feature of the judgment is its rejection of the idea that welfare deputyships sit uneasily alongside the MCA’s promotion of autonomy. The Court emphasised that broad concepts such as independence and self-determination cannot override the statutory framework. The proper question is whether deputyship advances the MCA’s core principles, including participation, best interests and the adoption of the least restrictive option.

This marks an important shift in emphasis. Previous authorities were frequently interpreted as requiring applicants to demonstrate exceptional circumstances before the appointment of a welfare deputy would be considered. The Court of Appeal’s reasoning suggests that the more relevant question is whether deputyship would improve decision-making arrangements for the individual concerned. In doing so, the Court has redirected attention away from generalised judicial caution and back to the language and purpose of the MCA itself.

Relationship-based decision-making

Central to the Court’s analysis was its recognition of the practical value of longstanding family involvement. Rather than treating close familial relationships with suspicion, the Court acknowledged that relatives frequently possess an unparalleled understanding of how an individual communicates, expresses preferences and engages with the world around them.

Family members may have extensive knowledge of a person’s communication style, behavioural indicators, values, beliefs and long-established preferences. In many cases, that knowledge has been developed over years of involvement in supporting the individual across different settings and stages of life.

Significantly, the Court rejected the notion that a parental relationship should automatically raise concerns about the continuation of parental decision-making authority into adulthood. The relevant consideration is whether the proposed deputy’s involvement will assist in ensuring that the individual’s views, preferences and values are properly identified and reflected in decision-making. The judgment therefore recognises that deputyship can, in appropriate cases, strengthen participation rather than diminish it.

Ongoing decisions and practical reality

The judgment also reflects a recognition that welfare decision-making is rarely confined to isolated events. For some individuals, particularly those with lifelong disabilities, acquired brain injuries or complex healthcare needs, decisions concerning care, support and treatment form part of an ongoing and interconnected process rather than a series of discrete issues.

The traditional approach has been that disputes should be resolved through issue-specific applications to the Court of Protection as they arise. However, the Court of Appeal accepted that repeated litigation will not always represent the most effective or proportionate way of addressing continuing welfare needs.

Where there is an anticipated stream of welfare decisions requiring continuity, coordination and responsiveness, deputyship may provide a more coherent framework than repeated recourse to the court. This element of the judgment is likely to be particularly relevant in cases involving long-term care planning and transitions between children’s and adult services.

Failures in the application of the MCA framework

One of the most significant aspects of the decision is the Court’s express recognition that failures by public authorities to apply the MCA framework properly may be relevant when considering whether a welfare deputy should be appointed.

This observation will be of particular significance to practitioners involved in welfare disputes. Many contested cases arise not because of any deficiency within the statutory framework itself, but because of difficulties in its practical implementation. Examples may include inadequate consultation with family members, failures to ascertain wishes and feelings, weak best-interests analysis, inconsistent approaches between agencies and delays in making important welfare decisions.

The Court did not suggest that disagreement with a local authority or an Integrated Care Board (ICB) will, by itself, justify the appointment of a deputy. Nevertheless, it accepted that persistent difficulties in the practical operation of the MCA may support the conclusion that deputyship would better protect the person’s interests and facilitate effective decision-making.

The judgment is therefore likely to have wider implications for public bodies and may lead to increased scrutiny of decision-making processes in future Court of Protection proceedings.

Practical implications for future applications

From a litigation perspective, Re HB is likely to alter both the presentation and assessment of welfare deputyship applications. Practitioners may wish to move away from arguments focused primarily on the rarity of deputyship and instead concentrate on demonstrating the practical benefits the proposed appointment would provide for the individual concerned.

The Court of Appeal’s reasoning suggests that practitioners should focus less on establishing exceptionality and more on demonstrating why deputyship represents the most effective and proportionate means of implementing the principles of the MCA in the circumstances of the particular case. The central question is not whether deputyship is inherently undesirable, but whether it will improve decision-making, enhance participation and promote the person’s welfare.

Applications should provide evidence of a continuing stream of interconnected welfare decisions and explain why issue-specific applications would be impractical or disproportionate.

Particular attention should also be given to demonstrating the proposed deputy’s ability to ascertain and give effect to the person’s wishes, feelings, beliefs and values. Rather than relying merely on the existence of a close family relationship, practitioners should demonstrate how the proposed deputy would facilitate the individual’s participation in decision-making. This approach aligns closely with the Court’s recognition that deputyship may, in some cases, enhance autonomy by providing a mechanism through which a person’s voice can be more effectively heard.

Where concerns exist regarding current decision-making arrangements, those concerns should be identified precisely and supported by evidence. General dissatisfaction with professional opinions is unlikely to be sufficient. More persuasive evidence may include repeated failures to consult appropriately, delays affecting welfare outcomes, recurring disputes between agencies, inconsistent decision-making processes or situations where formal intervention has repeatedly been required to resolve disagreements.

Practitioners should also consider carefully how the proposed deputyship is framed. Applications that clearly identify the categories of decisions likely to arise, explain why ongoing authority is required and demonstrate how deputyship will facilitate effective participation are likely to be more persuasive than those relying on broad assertions that family members are best placed to make decisions. Following Re HB, the emphasis should be on functionality, proportionality and the practical benefit to the individual concerned.

Implications for local authorities and ICBs

The decision is also likely to be of considerable importance to local authorities and Integrated Care Boards.

Following Re HB, public bodies may find it more difficult to rely solely on the argument that welfare deputyships should remain exceptional. Opposition to such applications is instead likely to require a more detailed analysis of whether deputyship would provide any additional benefit to the individual in question.

The judgment may also result in increased scrutiny of compliance with MCA obligations. Particular attention is likely to be paid to the quality of consultation undertaken with family members, the manner in which wishes and feelings have been identified and considered, and the robustness of best-interests decision-making. The Court’s recognition that deficiencies in the practical operation of the MCA may be relevant to deputyship applications creates a clear incentive for public authorities to ensure that statutory decision-making processes are properly implemented.

A clearer framework

The Court of Appeal has not opened the door to welfare deputyships in every case. What it has done, however, is challenge the assumption that such appointments should be approached with inherent reluctance. By returning the focus to the statutory objectives of the MCA, the judgment provides a clearer framework for determining when deputyship may genuinely enhance participation, welfare and effective decision-making.

For practitioners, the message is clear. Future applications are likely to succeed not because the circumstances can be characterised as extraordinary, but because the evidence demonstrates that deputyship would provide a practical, proportionate and person-centred framework for ongoing welfare decision-making. By refocusing attention on the statutory principles rather than a culture of judicial caution, Re HB may prove to be a genuine turning point in the law relating to personal welfare deputyships.