Welfare Deputy: When Does the Court of Protection Appoint One?
Welfare deputies are rare — the Court of Protection prefers single specific orders over ongoing deputyship. They are needed only where care decisions are complex and no health and welfare LPA was ever made.
Key Points
Welfare deputies are rare
The Court strongly prefers making a single specific order to resolve a particular welfare decision over appointing an ongoing deputy with general welfare powers. An application for a welfare deputy will usually only succeed where the person's welfare needs involve repeated, complex decisions over time.
Property deputies are far more common
Most Court of Protection deputyship applications concern property and financial affairs (managing a bank account, selling a house). Welfare deputyship is a separate and more restricted regime — having a property deputy does not give any welfare decision-making power.
No power to consent to or refuse life-sustaining treatment
Under MCA 2005 s20(5), a welfare deputy cannot refuse consent to life-sustaining treatment on behalf of the person who lacks capacity. Only the Court of Protection can make such a decision directly. A health and welfare LPA attorney (if the LPA expressly confers the power) has a broader remit than a deputy on this point.
Health and welfare LPA would have prevented the need
If a person had made a registered health and welfare LPA while they had capacity, a welfare deputy would almost never be needed — the LPA attorney can make welfare decisions (including, if the LPA expressly says so, decisions about life-sustaining treatment). The absence of an LPA is the usual cause of welfare deputy applications.
Frequently Asked Questions
What is a welfare deputy and when does the Court of Protection appoint one?
A welfare deputy is a person appointed by the Court of Protection under the Mental Capacity Act 2005 s16(2)(b) to make personal welfare decisions on behalf of an adult who lacks the mental capacity to make those decisions themselves. The welfare deputy's powers relate to matters such as where the person lives, what medical treatment they receive, and who can have contact with them. The Court of Protection is reluctant to appoint welfare deputies with general ongoing powers — it prefers to make a single specific order dealing with the immediate decision, rather than hand general welfare decision-making authority to a deputy. A welfare deputy will only be appointed where the person's welfare situation involves a pattern of recurring complex decisions that genuinely require an ongoing decision-maker.
How does a welfare deputy differ from a health and welfare LPA attorney?
A health and welfare LPA is made by a person while they still have mental capacity, appointing one or more attorneys to make welfare decisions if the donor later loses capacity. A welfare deputy is appointed by the Court of Protection after the person has already lost capacity. The two differ in important ways: (1) an LPA attorney is chosen by the donor themselves — a welfare deputy is chosen by the Court; (2) an LPA can expressly grant the attorney the power to refuse consent to life-sustaining treatment — a welfare deputy is prohibited by statute from making such a decision (MCA 2005 s20(5)); (3) having a valid health and welfare LPA makes a welfare deputyship application unnecessary and the Court will not appoint a deputy where an LPA already covers the decisions in question. This is one of the most compelling reasons to make a health and welfare LPA — it avoids the need for expensive and slow court proceedings.
What decisions can a welfare deputy make?
A welfare deputy can make decisions within the scope of the order appointing them. The scope is set by the Court and will reflect the specific needs of the person. Typical welfare deputy powers include: deciding where the person should live (care home, family home, supported living); consenting to or refusing medical treatment that is not life-sustaining; making contact decisions (who can visit); decisions about day-to-day care and personal matters. A welfare deputy cannot: make decisions that are reserved to the Court of Protection (including life-sustaining treatment refusals, and serious medical treatment decisions such as sterilisation or organ donation); make decisions the person has capacity to make themselves; act in a way that is not in the person's best interests under MCA 2005 s4.
How do you apply for a welfare deputy order at the Court of Protection?
To apply for a welfare deputy order, the applicant lodges Form COP1 (application form), Form COP3 (assessment of capacity, completed by a medical professional), and Form COP24 (a witness statement setting out the welfare decisions that need to be made and why a deputy is needed) with the Court of Protection. The application fee is currently £371. Notice must be given to the person who lacks capacity and to specified relatives and interested parties. The Court will assess whether a deputyship is necessary or whether a single specific order would be sufficient. Where the application is straightforward and uncontested, it may be dealt with on the papers without a hearing. Contested applications require a full hearing and are significantly more expensive.
Does a welfare deputy need to be approved for each welfare decision?
No — a welfare deputy acts autonomously within the scope of their appointment. They do not need to return to court for each decision, but they must at all times act in the person's best interests under MCA 2005 s4, must follow any conditions or restrictions in the court order, and must not act outside the scope of their powers. The Office of the Public Guardian (OPG) supervises deputies and can investigate complaints about a deputy's conduct. Welfare deputies are usually supervised in a similar way to property deputies — they may be required to file annual reports. In practice, welfare deputies are far more closely scrutinised than LPA attorneys because the court imposed the relationship rather than the person having chosen it themselves.
Make an LPA Now — Avoid the Need for a Deputy
A health and welfare LPA made while you have capacity means your chosen person can make welfare decisions for you without any court involvement. WillSafe can help from £19.97.