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PERSONAL WELFARE DEPUTYSHIPS – THE CLIFF EDGE

PERSONAL WELFARE DEPUTYSHIPS – HOW TO SUCCEED?

There are two hurdles to overcome when seeking to make a successful application for a personal welfare deputyship (PWD). The first is the reluctance of the Legal Aid agency to grant a legal aid certificate and the second is the high bar created by the Court of Protection.

There are two effects of this.

1. Those who do not have the funds are at a disadvantage

2. Those who lack the capacity to make Health and Welfare Lasting Powers of Attorney are, in effect, discriminated against.

If they had capacity, they could have chosen for themselves who would make key decisions in their lives. Next of kin have no rights of decision making over adults who do not have capacity to make their own decisions about their lives.

This is particularly challenging for those with parental responsibility of disabled children who lack the capacity make decisions for themselves. Up to 18 they have the legal right to make decisions, at midnight when they become 18, all that changes. Suddenly the Mental Capacity Act cuts in and decision are often taken away from those who know their loved ones best of all.

THE HIGH BAR OF LEGAL AID

A recent legal aid application was refused;

because it is not clear that there is a need for representation in the particular circumstances pursuant to Regulation 39(e) the Civil Legal Aid (Merits Criteria) Regulations 2013 (as amended).and
A grant of Legal Representation is not considered to be appropriate in the circumstances as it has not been made clear why the client’s mother cannot reasonably make the application and for legal help to be provided to her where needed.

The criteria set out in Regulation 39(e) states:

There is a need for representation in all the circumstances of the case including—

(i) the nature and complexity of the issues;

(ii) the existence of other proceedings; and

(iii) the interests of other parties to the proceedings;

It is my view that legal aid should be granted because, as you will see below, PWD cases involve significant complexity, the nature of the application is highly technical, and it is clearly in the interests of P that legal aid should be granted.

It is very important that in seeking to satisfy the LAA a comprehensive statement must be prepared fully setting out why the factors that I set out below are met.

HOW CAN WE SATISFY THE JUDGE?

In the leading case of Re Lawson, Mottram and Hopton (appointment of personal welfare deputies) [2019] EWCOP 22, Mr Justice Hayden (the Vice President of the Court of Protection) looked in detail at the existing case-law, the MCA Code of Practice, the structure of the MCA and the appointment of deputies in practice. He observed that the numbers of PWDs average about 375 per year, compared to around 15,000 property and affairs deputies.

Hayden J decided at paragraph 53 that a number of “clear principles” emerge.

“The above is not in any way to be interpreted as a statutory bias or presumption against appointment. It is the likely consequence of the application of the relevant factors to the individual circumstances of the case. It requires to be emphasised, unambiguously, that this is not a presumption, nor should it even be regarded as the starting point.

To construct an artificial impediment, in practice, to the appointment of a PWD would be to fail to have proper regard to the ‘unvarnished words’ of the MCA 2005 (PBA v SBC [2011] EWHC 2580) (Fam). It would compromise a fair balancing of the Article 6 and Article 8 Convention Rights which are undoubtedly engaged;

The Code of Practice is not a statute, it is an interpretive aid to the statutory framework, no more and no less. It is guidance which, whilst it will require important consideration, will never be determinative. The power remains in the statutory provision;

The prevailing ethos of the MCA is to weigh and balance the many competing factors that will illuminate decision making. It is that same rationale that will be applied to the decision to appoint a PWD;

There is only one presumption in the MCA, namely that set out at Section 1 (2) i.e., ‘a person must be assumed to have capacity unless it is established that he lacks capacity’. This recognition of the importance of human autonomy is the defining principle of the Act. It casts light in to every corner of this legislation and it illuminates the approach to appointment of PWDs;

P’s wishes and feelings and those other factors contemplated by Section 4 (6) MCA will, where they can be reasonably ascertained, require to be considered. None is determinative and the weight to be applied will vary from case to case in determining where P’s best interests lie (PW V Chelsea and Westminster Hospital NHS Foundation Trust and Others [2018] EWCA Civ 1067);

It is a distortion of the framework of Sections 4 and 5 MCA 2005 to regard the appointment of a PWD as in any way a less restrictive option than the collaborative and informal decision taking prescribed by Section 5;

The wording of the Code of Practice at 8.38 (see para 20 above) is reflective of likely outcome and should not be regarded as the starting point. This paragraph of the Code, in particular, requires to be revisited.

So, what can we take from these wise words?

PWD cases require a hearing to allow the Judge to make the decision.

There are 4 key factors in presenting a case to both the court and the LAA.


1. Why making a PWD would be in the person’s best interests?

2. What indicators are there that the appointment of a PWD is what the person would have wanted for themselves. We call this ‘wishes and feelings’.

3. The court is more likely to appoint a PWD where there are a series of linked decisions which will need to be made over time and that it would be in the person’s best interests for there to be consistency and continuity of having the same person making them. This is particularly relevant where a disabled child is becoming an adult.

4. Every agency should be asked to express a view. This will often involvesocial workers, GPs and specialist, residential or education authorities, and perhaps others. The court will want to see that all such bodies are aware of what is being proposed. An objection or challenge from any one could mean that there would be little point in making the application. Talk to them to explain what you are planning.

Following all these steps is no guarantee to success. You will see that the gathering of evidence is key. It should be part of transitioning to adult life for those whose capacity is challenged that carefully consideration for the appointment of a PWD is considered. Planning is key.

Ask yourself a simple question, in what way would the appointment of a PWD benefit a person in their best interests. Then gather the evidence that establishes this.

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