Background
This case concerns HB, a 22-year-old non-verbal man with a severe learning disability, autism, and other complex health needs. His parents, JB and SB, have been his devoted carers and advocates throughout his life, twice moving their family to live near his residential placements. They have a history of encountering significant difficulties with statutory bodies, having had to resort to legal appeals to secure appropriate educational and care placements for HB that were initially resisted by the local authority, often on grounds of cost.
In 2025, the parents applied to the Court of Protection to be appointed as HB’s joint Personal Welfare Deputies (PWDs). This would give them legal authority to make decisions about his care, residence, and medical treatment. The application was supported by professionals who knew HB well, and no party opposed it. However, a judge of the Court of Protection refused the application, concluding that informal, collaborative decision-making with care providers was sufficient and that a PWD appointment would be an unnecessary infringement on HB’s autonomy. The parents appealed this refusal.
The Court’s Holding
The Court of Appeal allowed the appeal, ruling that the lower court judge was wrong to refuse the parents’ application. The President of the Court of Protection, Sir Stephen Cobb, held that appointing the parents as PWDs was in HB’s best interests. The court found that while the Mental Capacity Act 2005 expresses a preference for decisions to be made by a court rather than a deputy, this is not an absolute bar. The primary consideration is always the best interests of the person lacking capacity.
The court determined that the history of difficulties the parents faced with statutory bodies demonstrated that the “collaborative decision-making” process was not working effectively to protect HB’s interests. Appointing the parents, who know HB intimately and are “completely committed” to him, provides a necessary mechanism for advocacy and ensures that decisions are made in his best interests, particularly in the face of institutional inertia or disagreement. Far from infringing on HB’s autonomy, the court reasoned that the appointment would help ensure his wishes and feelings were properly represented. The Court of Appeal granted the deputyship application and remitted the case back to the Court of Protection only to determine the specific scope and duration of the order.
Key Takeaways
- The statutory preference for a court decision over a deputy appointment (MCA 2005, s.16(4)) is a principle to be considered, not a rigid rule that prevents PWD appointments.
- Evidence of past and ongoing difficulties in making collaborative decisions with statutory bodies is a strong factor in favour of appointing a PWD to act as an advocate.
- Appointing a well-suited family member as a PWD can be the “least restrictive” option for ensuring a person’s best interests are met, especially when a series of linked decisions are required over time.
- The appointment of a PWD is not necessarily an infringement of an adult’s autonomy; it can be a vital tool to ensure their voice and best interests are effectively championed.
Why It Matters
This decision provides significant clarity on the criteria for appointing Personal Welfare Deputies under the Mental Capacity Act. It reinforces that PWD appointments are an important tool, particularly for families of young adults with profound disabilities transitioning into adult services, who often face challenges in navigating care systems and ensuring their loved one’s needs are met. The ruling signals that courts should take a practical and realistic approach, appointing deputies where informal processes have proven inadequate.
By championing the role of dedicated family members, the Court of Appeal empowers those who are closest to the individual to make crucial welfare decisions, rather than requiring repeated, costly, and time-consuming applications to the court for every major issue that arises. This judgment serves as important guidance for judges, legal practitioners, and families navigating the complexities of the Court of Protection.