Best interests and mental capacity
Nicholas Endean | 04.05.2018
30.07.2019 Amy Goldman
Deciding to appoint a deputy for health and welfare for your family member will always be a difficult decision. The Court has been reluctant to make appointments reserving these for only the most ‘difficult’ cases. In this post we consider the guidance given by the court on this issue and how recent case law has changed this.
The Mental Capacity Act 2005 Code of Practice (‘The Code’) suggests a deputy for health and welfare should only be appointed when ongoing decisions need to be made on behalf of your family member who lacks capacity.
It is important to remember that deputies should only ever be appointed to make decisions which your family member lacks the capacity to make. The Code is clear that a deputy’s authority should be as limited in scope and duration as possible. The starting assumption must always be that your family member has the capacity to make a decision unless it can be shown that they lack capacity. This means that your family member’s capacity must be assessed on a decision by decision basis and. all possible steps must be taken to support your family member in making decisions themselves.
Recent case law – Haden J’s principles
Hayden, J recently considered the appointment of health and welfare deputies in Re Lawson, Mottram and Hopton. In his view the prevailing ethos of the Mental Capacity Act 2005 is that decisions about whether to appoint a health and welfare deputy should be made based on the merits of doing so in each case. You should not therefore be put off from making an application to appoint a health and welfare deputy for your family member if you feel that this would be in their best interests.
Hayden J also emphasised that your family member’s wishes and feelings should form part of the appointment decision. You should therefore try to ascertain from your family member what their wishes and feelings are as the court will take these into account.
Hayden J’s message is clear: