Welfare deputyship – the next steps

Until recently, parents of children who lack capacity to make their own decisions, for example if they have a learning disability, have had limited rights when it came to making decisions affecting the health and welfare of their children.  However, thanks to a successful campaign from families in London, Brighton and Windsor, that could all be about to change.

The current law states that parents are only responsible for their children and able to make decisions on their behalf up until they become adults at 18. Parents can and do apply for a Deputyship Order relating to their child’s property and financial affairs where necessary. However, except  in the most complex cases, parents are refused permission by the Court of Protection to be appointed as a Deputy in relation to health and welfare matters. These decisions are taken in accordance with the  Mental Capacity Act and supporting Code of Practice in their child’s best interests. This can cause difficulties when there is a difference in opinion and in many cases parents are not properly involved in the decision making process. If the Court of Protection needs to make a ruling on what is best, this is a complex, often slow, stressful and costly process.

Whilst anyone, parent or otherwise, would want what’s in the best interest of the individual, for many parents who have children with learning difficulties, these decisions need to be made more promptly, by the very people who have the best experience of their child’s needs.

The new ruling should mean that families will no longer be at risk of being ignored or having decisions made without them being consulted. The three families who campaigned for the law change have successfully persuaded the Court of Protection that the wording within Code of Practice relating to children with learning disabilities needs to be revisited. This is currently being fully revised to take into account recent developments in case law in relation to The Mental Capacity Act and how this is being implemented.

The Judge in the case agreed that the vast majority of decisions concerning incapacitated adults are taken informally and collaboratively by individuals or groups of people consulting and working together. However, the downside was that often families continue to find themselves either excluded or not properly consulted about best interests decisions regarding their loved ones. 

We will be following this case closely, but in the meantime, if you would like any legal advice relating to your own care situation or appointing a deputy for a Lasting Power of Attorney, contact the Private Client team at Downs Solicitors to see how we can help.


Liz Dalgetty

Liz Dalgetty

Consultant Solicitor & Notary Public

Tel: +44 (0) 1306 502251

Office: Dorking

Email: l.dalgetty@downslaw.co.uk