Court of Appeal considers welfare deputyship for the first time
The Court of Appeal has handed down judgment in Re HB (Appointment of Personal Welfare Deputy) [2026] EWCA Civ 960, providing important guidance on the appointment of personal welfare deputies under the Mental Capacity Act 2005. Ruth Hughes KC appeared on behalf of the Public Guardian, who intervened in the appeal.
The appeal arose from an application by the parents of HB, a 22-year-old man with profound autism, severe learning disability and complex care needs, to be appointed as his personal welfare deputies. Their application had been refused by the Court of Protection, which concluded that collaborative decision-making under the Mental Capacity Act provided an adequate framework for decisions concerning HB’s welfare and that the appointment of deputies would represent an unnecessary interference with his autonomy.
The Court concluded that it had been wrong to characterise the history of decision-making concerning HB as an example of effective collaborative working. Rather, the evidence demonstrated that his parents had repeatedly needed to challenge public authorities and professionals in order to secure appropriate education, care and medical provision. Those experiences, together with the continuing prospect of a succession of significant welfare decisions relating to HB’s future care and accommodation, pointed towards the appointment of personal welfare deputies being in his best interests.
The Court emphasised that applications for personal welfare deputyship remain governed by the statutory framework in sections 16 and 17 of the Mental Capacity Act 2005. Whether such an appointment is appropriate will always require a fact-sensitive evaluation of P’s best interests, including the statutory preference that decisions should ordinarily be made by the court rather than by a deputy and that any deputyship should be limited in both scope and duration so far as reasonably practicable.
While allowing the appeal, the Court did not itself settle the precise terms of the deputyship order. Instead, it held that the parents should be appointed as personal welfare deputies in principle but remitted the case to a Tier 2 judge of the Court of Protection to determine the appropriate scope and duration of the order. In doing so, the Court observed that carefully defined and time-limited deputyships may be particularly appropriate where young adults with profound disabilities are transitioning from children’s to adult services, reflecting evidence before the Court of Appeal from the Public Guardian that such orders allow the continuing necessity for deputyship to be reviewed.
The judgment also contains important observations on the concept of autonomy in the context of Mental Capacity Act. The Court of Appeal accepted that respect for the autonomy of adults lacking capacity remains an important principle underpinning the statutory scheme. However, it cautioned against treating autonomy as a free-standing concept in light of its elasticity even in the context of those subject to the Mental Capacity Act. Instead, the Court of Appeal held that the statutory framework should remain the primary focus, requiring attention to the least restrictive option, support for P’s participation in decision-making, and proper consideration of P’s wishes and feelings. In cases such as HB’s, the Court observed that the appointment of a personal welfare deputy may enhance rather than diminish P’s practical ability to participate in decisions affecting his life, particularly where family members are uniquely placed to understand and communicate P’s wishes and preferences.
The decision provides authoritative appellate guidance on the approach to personal welfare deputyship applications and is likely to be of considerable significance for future cases involving adults with profound disabilities, particularly those moving from childhood into adult care arrangements.