Court of Protection ruling on personal welfare deputyships

For many years, the appointment of a personal welfare deputy has been viewed as the exception rather than the rule. Practitioners have often advised that the Court of Protection would only make such appointments in relatively unusual or exceptional circumstances, with a preference for collaborative decision-making and court intervention only where specific disputes arose.

The background to the Court of Appeal's decision

The case of Re HB (Appointment of Personal Welfare Deputy) [2026] EWCA Civ 960 concerned a 22-year-old man with profound disabilities and complex care needs. His parents sought appointment as personal welfare deputies to assist with a continuing stream of important decisions concerning his care, health, education and living arrangements. Although the application had been refused by the Court of Protection, the Court of Appeal overturned that decision and confirmed that a personal welfare deputyship was appropriate on the facts.

Importantly, the Court rejected the idea that welfare deputyships should only be granted in the most exceptional cases. Instead, it confirmed that the question remains what is in the individual's best interests.

The Court's approach to welfare deputyship applications

In considering the individual's best interests, the Court provided further guidance on the factors that should inform decisions about the appointment of a personal welfare deputy. The Court's analysis builds on the guidance set out by Hayden J in the previous leading case of Lawson & Ors [2019] EWCOP 22.

The Court concluded that "considerations of dignity and quality of life provide a more useful and concrete analytical framework" than the concept of autonomy, which featured prominently in the Lawson decision. In applying that approach, the Court suggested the following features may indicate that the appointment of a personal welfare deputy is appropriate:

“ i) The applicant for the [personal welfare deputy] PWD stands in some special relationship in relation to P, such as in this case where the applicants are his parents with a special ability to understand and communicate with and for P;

ii) Where P's wishes and feelings, their beliefs and values and the things which are important to them … would be likely to be enhanced by the appointment of a PWD, to make choices for them as an individual human being;

iii) In circumstances in which it is likely that more than one decision will need to be made in the foreseeable future (see the Code at 8.39…); a series or "stream" … of decisions in respect of P is reasonably anticipated;

iv) When P is moving from childhood to adulthood and transitioning between children's and adult's services, where it may well be in P's best interests to have someone acting as his agent for decision-making; transitional difficulties for young adults with lifelong impairments may justify short-term solutions;

v) The appointment may be particularly appropriate where it can be shown (as here [for HB]) that public bodies have failed, or threaten to fail, properly to apply the MCA 2005 framework, particularly in relation to consultation with families;

vi) Decision-making in the foreseeable future needs to be prompt and agile in order to respond to an evolving set of circumstances.”

What does this decision mean for families and practitioners?

This decision marks an important development in the Court's approach to personal welfare deputyships. While welfare deputyships may not become automatic, the Court of Appeal has moved away from the perception that they are only appropriate in the rarest of cases and has provided a clearer framework for practitioners and families considering an application.

Wrigleys are often approached by parents of disabled adult children who feel they have been excluded from the collaborative decision-making process envisaged by the Mental Capacity Act 2005 and its associated Code of Practice. The Court's judgment is therefore likely to be welcomed by many families and may give renewed hope that applications for personal welfare deputyship will be considered in less restrictive terms than may previously have been understood.

While the judgment provides greater clarity on when welfare deputyships may be appropriate, it also raises an important practical question: how are families expected to fund these applications? The general rule in personal welfare proceedings is that there is no order as to costs, meaning each party usually bears their own costs unless the court considers that a different order is justified. This differs from property and affairs proceedings, where the general rule is that costs are payable by the person who is the subject of the application.

Where family members apply to become personal welfare deputies, it is therefore common for them to incur and bear at least some of their own legal costs, unless the court specifically orders otherwise.

The decision does not address the practical issue of how families are expected to fund such applications, which remains a significant barrier for many parents of disabled adults.

If you would like to discuss any aspect of this article further, please contact a member of our Court of Protection team on 0114 267 5588.

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The information in this article is necessarily of a general nature. The law stated is correct at the date (stated above) this article was first posted to our website.

Specific advice should be sought for specific situations. If you have any queries or need any legal advice, please feel free to contact Wrigleys Solicitors.