Recent Court of Appeal Decision: What Families Caring for Vulnerable Adults Need to Know

Summary of the case

If you care for an adult son or daughter who cannot make important decisions for themselves, a recent Court of Appeal decision may make it easier to obtain a Health and Welfare Deputyship.

The case, Re HB (Appointment of Personal Welfare Deputy), recognises that family members are often best placed to understand a loved one's needs, wishes and day-to-day challenges, particularly where complex care arrangements are involved. Unlike the previous position, this recent judgment makes clear that Health and Welfare Deputyships should not be confined to unusual circumstances, but may instead be entirely appropriate where a trusted family member is uniquely placed to represent a relative’s wishes and where a continuing programme of welfare decisions is anticipated. The decision is especially relevant for families supporting an adult child with severe disabilities following a clinical negligence claim, birth injury claim or serious personal injury settlement.

When Someone Else Makes Decisions About Your Loved One

Many parents spend years advocating for a child with significant disabilities. You know what makes them happy, what causes distress, how they communicate and what support helps them live the fullest life possible. Then adulthood arrives. Suddenly, there may be social workers, NHS teams, care providers, therapists, case managers and housing professionals involved in important decisions. Although everyone may have good intentions, families often tell us they feel frustrated when decisions are made without properly understanding the person at the centre of those decisions.

Disagreements may arise about:

• Where a vulnerable adult should live
• The support they require
• Medical treatment
• Education or support during the day
• Contact with family members
• Care arrangements and staffing
• Specialist accommodation and support packages

For many families, the priority becomes ensuring their loved one’s views, wishes and feelings properly heard and considered.

The Court of Appeal Challenges the Traditional Approach

Historically, the Court of Protection has been reluctant to appoint Health and Welfare Deputies. Families were often told that welfare decisions should be made collaboratively by professionals under the Mental Capacity Act framework, with deputyship reserved for exceptional circumstances.

The Court of Appeal's decision in Re HB represents an important shift in emphasis. The Court recognised that some families possess a unique understanding of their loved one's wishes and needs and that appointing a Health and Welfare Deputy can, in the right circumstances, improve decision-making rather than undermine it. This is an important development for families who have spent years coordinating complex care arrangements.

What Is a Health and Welfare Deputy?

A Health and Welfare Deputy is appointed by the Court of Protection to make certain decisions for someone who lacks the mental capacity to make those decisions themselves.

Depending on the terms of the order, decisions may include:

• Health and medical issues
• Care arrangements
• Living arrangements
• Access to services and therapies
• Day-to-day welfare matters
• Social and community participation

Not every family will need a Health and Welfare Deputyship. However, for some families it can provide clarity, consistency and reassurance when important decisions need to be made.

Why This Decision Matters for Families Following a Clinical Negligence or Personal Injury Claim

The case will be of particular interest to families whose loved one has received substantial compensation following:

• Birth injury claims
• Cerebral palsy claims
• Brain injury claims
• Spinal cord injury claims
• Serious medical negligence claims
• Catastrophic personal injury claims

Following a successful claim, many families find themselves responsible for overseeing highly complex care arrangements for decades.

The compensation may fund:

• Specialist carers
• Therapies and rehabilitation
• Adapted accommodation
• Support workers
• Assistive technology
• Transport arrangements
• Professional case management

While a Property and Financial Affairs Deputy may be appointed to manage the compensation award, families often discover that the welfare and care aspects of their loved one's life can be equally challenging.

Questions regularly arise about:

• How care should be delivered
• Whether a residential placement is suitable
• Which therapies will best meet the person's needs
• How best to promote independence
• Managing disagreements between professionals

These are rarely one-off decisions. They often continue throughout a person's life. The Court of Appeal recognised precisely this point, highlighting the importance of situations where there is a continuing stream of welfare decisions to be made.

The Challenges of Transitioning into Adulthood

One of the most significant aspects of the judgment concerns young people moving from children's services into adult services. Many families describe this as one of the most difficult stages of the care journey. Children's services, schools and familiar professionals may be replaced by new organisations, different funding arrangements and unfamiliar decision-makers. At the very moment families need consistency, everything can appear to change.

The Court of Appeal specifically acknowledged these challenges and suggested that Health and Welfare Deputyship may be particularly valuable during this transition period. families whose son or daughter has profound disabilities, acquired brain injuries or life-long care needs, this recognition is especially welcome.

Families Often Know More Than Anyone Else

One of the strongest messages from the judgment is that parents and family members can play a vital role in helping others understand a vulnerable person's wishes and feelings. This is particularly important where communication may be non-verbal or highly individual. Parents often spend decades learning how a child communicates discomfort, happiness, preferences or concerns.The Court recognised that professionals may not always possess the same level of understanding.

In some circumstances, appointing a Health and Welfare Deputy can help ensure that the person's wishes remain at the centre of important decisions.

How Tozers Can Help

At Tozers, our Court of Protection team works with families across the country who are supporting vulnerable adults with significant and complex needs.

We have particular experience advising families where a loved one has received a substantial clinical negligence or personal injury settlement and requires ongoing support throughout adulthood.

Our work regularly involves:

• Health and Welfare Deputyship applications
• Property and Financial Affairs Deputyships
• Court of Protection proceedings
• Statutory wills and gifting applications
• Multi-million-pound clinical negligence settlements
• Brain injury and cerebral palsy cases
• Capacity assessments
• Care package and accommodation issues
• Long-term planning for vulnerable adults

We understand that managing a compensation award is only one part of the picture. Families are often navigating complex care arrangements, multiple professionals and difficult decisions about their loved one's future. Our role is to provide practical legal advice whilst supporting families through the realities of long-term care planning.

Could a Health and Welfare Deputyship Help Your Family?

If you are finding it difficult to navigate decisions about a vulnerable adult's care, accommodation, medical treatment or future support arrangements, it may be worth exploring whether a Health and Welfare Deputyship is appropriate.

The Court of Appeal's decision in Re HB confirms that where there is an ongoing need for important welfare decisions and where family members are uniquely placed to understand and represent a loved one's wishes, deputyship can be a valuable and proportionate solution.

Considering a Health and Welfare Deputyship?

Tozers' specialist Court of Protection team advises families, deputies and trustees on all aspects of deputyship creation and management. If you would like to discuss your circumstances, we would be happy to explain the options available and help you determine the most appropriate route forward.