Personal welfare deputyships – what families need to know

The Court of Appeal’s decision in Re HB (Appointment of Personal Welfare Deputy) [2026] EWCA Civ 960 marks an important development in the law relating to personal welfare deputyships.

For many years, families have often been advised that appointing a personal welfare deputy is only possible in exceptional circumstances. Re HB moves away from that restrictive approach. It confirms that each application must be considered on its individual facts, with the person’s best interests at the centre of the decision.

The judgment does not mean that personal welfare deputies will now be appointed routinely. However, it confirms that welfare deputyship can be an appropriate and practical option, particularly where a person has complex or lifelong needs and important decisions will need to be made over time.

What is a personal welfare deputy?

A personal welfare deputy is appointed by the Court of Protection to make specified decisions for someone who lacks the mental capacity to make those decisions themselves.

Depending on the terms of the court order, these decisions may relate to matters such as:

• care and support
• medical treatment
• where the person lives
• education
• access to community activities
• aspects of the person’s day-to-day life

A welfare deputy does not receive unrestricted authority over another person’s life. They may only make decisions covered by the court order and only where the person cannot make the particular decision themselves. They must always follow the principles of the Mental Capacity Act 2005 and act in the person’s best interests.

Why are personal welfare deputyships uncommon?

Property and financial affairs deputyships are considerably more common than personal welfare deputyships.

Evidence presented to the Court of Appeal showed that, in 2025, the Office of the Public Guardian received more than 12,500 property and affairs deputyship orders, compared with 174 personal welfare orders. Around 95% of personal welfare deputyships were held by family members rather than professional deputies.

There is a practical reason for this difference. If someone lacks capacity to manage their finances, another person will generally require formal legal authority before they can manage bank accounts, investments or property on their behalf.

Many everyday care and treatment decisions can instead be made through the Mental Capacity Act’s collaborative best-interests process. This often allows family members, care providers, health professionals and others to work together without anyone being formally appointed as a welfare deputy.

For many individuals and families, this approach works well. Difficulties can arise, however, when someone has complex or lifelong needs and there is an ongoing series of significant decisions to make.

In these circumstances, there can be an important legal distinction between a family member being consulted and having the authority to make a decision. The Court of Appeal emphasised that a welfare deputy is not simply an “amplified voice”. Appointment changes the legal position by giving the deputy authority to make the decisions included within the court order.

What happened in the Re HB case?

HB is a young adult with severe learning disabilities. He is autistic, non-verbal and lacks capacity in several areas of his life, including decisions relating to his personal welfare. His parents have developed a detailed understanding of his individual cues and how he communicates.

HB’s parents applied to be appointed as his personal welfare deputies. Their application was supported by people who knew him well and was not opposed by the relevant local authority. However, the Court of Protection initially refused the application, partly because the judge considered that collaborative decision-making had operated in HB’s best interests.

The Court of Appeal took a different view.

HB’s parents had repeatedly needed to challenge decisions and advocate for suitable provision. In one instance, an appropriate school placement was accepted as a compromise shortly before a SEND Tribunal hearing. The family later faced resistance to a further placement when the local authority proposed an alternative that the Court described as “wholly unsuitable”.

The fact that appropriate outcomes were eventually achieved did not necessarily show that collaborative decision-making had worked effectively. Those outcomes had often been achieved because HB’s parents had persisted in challenging decisions and advocating on his behalf.

This is an important point for families. Reaching the right outcome eventually does not always mean that the process used to reach it is working well.

The Court of Appeal allowed the appeal and concluded that HB’s parents should be appointed jointly and severally as personal welfare deputies across a range of care and welfare matters. The precise scope and duration of their authority was referred back to a Tier 2 Court of Protection judge.

Has Re HB changed the test for appointing a welfare deputy?

One of the most important aspects of Re HB is its treatment of the earlier decision in Lawson, Mottram and Hopton (Appointment of Personal Welfare Deputies) [2019] 1 WLR 5164.

That case had often been understood as establishing a particularly restrictive approach to personal welfare deputyships. In Re HB, Sir Stephen Cobb said that, other than certain principles which remain useful, he did not consider comments made in paragraph 53 of Lawson to reflect modern law or practice.

The Court of Appeal did not replace a presumption against appointment with a presumption in favour of it.

Section 16(4) of the Mental Capacity Act remains important. The Court must still consider whether it would be preferable to make a particular decision itself rather than appoint a deputy. Any authority granted to a deputy should also be as limited in scope and duration as is reasonably practicable.

What has changed is the correct starting point.

An application should not be rejected simply because personal welfare deputyships have historically been regarded as exceptional. The Court must examine:

• the person’s individual circumstances
• the decisions that are likely to arise
• the relationship between the person and the proposed deputy
• whether appointing a deputy would be in the person’s best interests

Each application must therefore be assessed on its merits by applying the Mental Capacity Act, rather than by imposing an additional “exceptional circumstances” test.

When might the Court appoint a personal welfare deputy?

The judgment identifies a potential middle ground between routine decisions, which may be dealt with through the ordinary best-interests framework, and particularly serious decisions that should be made by the Court itself.

Circumstances that may support the appointment of a personal welfare deputy include:

• the proposed deputy has a particularly close relationship with the person
• the proposed deputy has a unique ability to understand the person’s wishes or communication
• an ongoing stream of welfare decisions is expected
• a young person is moving from children’s services to adult services
• organisations have failed, or may fail, to consult the family properly
• decisions may need to be made promptly as circumstances change
• services are fragmented or several organisations are involved

These factors are not a fixed checklist. Every person’s situation is different, and the Court must consider the individual facts of the case.

Could a welfare deputyship support a person’s autonomy?

At the original hearing, the judge considered that appointing HB’s parents might interfere unnecessarily with his autonomy as an adult.

The Court of Appeal cautioned against using “autonomy” as a broad or decisive concept. Instead, the focus should remain on the principles contained in the Mental Capacity Act. These include supporting the person to participate in decisions, considering their wishes and feelings, acting in their best interests and choosing the least restrictive option.

In some cases, appointing a welfare deputy could increase the person’s ability to influence decisions about their own life.

HB’s parents had a unique understanding of his cues and individual way of communicating. The Court considered that giving them decision-making authority was likely to enhance HB’s involvement in decisions and improve his quality of life, rather than limit his autonomy.

What does Re HB mean for young people approaching adulthood?

The transition from children’s services to adult services is likely to be one of the most practically important areas affected by the judgment.

The Mental Capacity Act generally applies from the age of 16, and it is possible in principle for a personal welfare deputy to be appointed for a 16 or 17-year-old. However, there is an overlap at this age between the Mental Capacity Act, parental responsibility and the Children Act framework. The most appropriate legal route will depend on the circumstances.

Parents do not automatically retain decision-making authority after their child reaches 18 simply because the young person has a disability or lacks capacity. As the Court made clear, a disabled adult should not be treated as a “grown-up child”.

However, the move into adult services can be particularly challenging. Families may go from being closely involved in their child’s support to navigating an unfamiliar adult system at the same time that important decisions are being made about:

• care and support
• education
• healthcare
• living arrangements
• access to services

The Court expressly recognised that the transition from children’s to adult services may be a situation in which a welfare deputyship is appropriate. It also identified the possibility of a time-limited appointment during this crucial period.

Personal welfare deputyship can therefore form part of a young person’s transition planning, rather than only being explored once a dispute or difficulty has arisen.

It will not be appropriate for every young person. However, it may be worth considering where the individual is unlikely to develop capacity for significant welfare decisions, has a trusted family member who understands their communication and wishes, and is likely to face an ongoing series of important decisions.

What are the limits of a personal welfare deputy’s authority?

The Re HB judgment does not give welfare deputies unrestricted authority.

A deputy:

• can only make decisions authorised by the court order
• can only act where the person lacks capacity to make the relevant decision
• must continue to follow the Mental Capacity Act
• must act in the person’s best interests
• must support the person’s involvement wherever possible
• cannot use their appointment to compel a public body to provide a particular service

The Court specifically warned that appointing a deputy cannot require a local authority or NHS body to create a particular care option or override decisions concerning available resources.

Where collaborative decision-making is working well, a deputy may not be necessary. If there is one particularly serious dispute, it may be more appropriate for the Court of Protection to decide that specific issue itself.

A welfare deputyship may be more suitable where there is an ongoing stream of decisions, services are changing or fragmented, and someone close to the person has a unique understanding of their wishes and communication. In those circumstances, formal decision-making authority may improve both the process and the person’s participation within it.

How can Morr & Co help?

If you have any questions or would like any further information on the content of this article, please do not hesitate to contact our Court of Protection team by emailing info@morrlaw.com or calling us on 0333 038 9100 and one of our team will be happy to assist.

Disclaimer
Although correct at the time of publication, the contents of this newsletter/blog are intended for general information purposes only and shall not be deemed to be, or constitute, legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article. Please contact us for the latest legal position.