An overview of how to apply for Health & Welfare Deputyship to come into affect when the child turns 18. This applies to children without approved Mental Capacity to make major decisions. It does not remove their rights, and is intended to work with them where possible.
Health and Welfare Deputyship
The Health and Welfare Issue
Many parents of birth injured children are unaware that when their child reaches 18, parental responsibility ends. If they lack mental capacity multiple agencies are legally bound to act for them in their ‘best interests’. For the most part parents are included in these decisions, but there is no obligation to do this. This comes as a shock when you spend 18 years making every decision for your damaged child and then suddenly all that stops. For children without mental capacity and usually a reduced mental age this seems counter intuitive. They have a mental age of 6 yet are being treated as adults? If they have capacity then they make their own decisions so this blog is for the children that don’t.
To continue to have overall control of your child’s health and welfare you face a daunting legal battle to become a Court of Protection appointed Health and Welfare Deputy. In the past they have been exceptionally hard to get, although a recent ruling at the Appeal Court overturning a Court of Protection refusal, has made it a little easier to grant deputyship to parents. Currently only 2.5% of Deputyships awarded are H&W, the majority being Financial.
The reasoning behind parental refusal is the Court believes professionals dealing with the young person will always act in their ‘best interests’. This begs the questions, don’t parents always act in their child’s best interest and after 18 years of caring for them who is best placed to know what’s in the child’s best interest?
In this blog I’ve dealt with; why parents may want deputyship; what it entails; the forms necessary; the reasons you need to give; whether you want full deputyship or a single issue ruling; costs; the Mental Capacity Act code of practice; the proposed draft changes affecting deputyship and the relevant law. Unfortunately it’s a long and complicated article, just at applying for a deputyship is.
What are the responsibilities of a Health and Welfare Deputy?
- Medical choices: Deciding on medical and dental treatments, though life-sustaining treatment powers are often excluded unless specifically ordered.
- Living arrangements: Deciding where the person lives and who they live with.
- Daily care: Managing daily routines, diet, dress, and social activities.
- Advocacy: Reviewing medical records and making formal complaints about care standards.
How to Apply
- Check capacity: Prove the person lacks the mental capacity to make specific welfare choices via a medical assessment.
- Submit forms: File official application forms, a capacity assessment, and a deputy declaration with the Court of Protection
- Best interests: Show the court why ongoing personal decisions are necessary instead of relying on standard professional best-interest meetings
Application Process
The above four forms are all that’s generally necessary.
Important Points to Consider.
Health and Welfare Deputyship is very hard to obtain at present and won’t be changing in the near future. To obtain ongoing control you must demonstrate a whole series of failings by the bodies that are tasked with making decisions in the person’s ‘best interests‘. If you can’t you simply won’t get a deputyship. A single incidence failing is not sufficient although you can apply for one off control concerning that specific incident. You must have solid producible evidence to support your allegations. Verbal allegations aren’t sufficient. It’s not enough just to say you are the parent and understand their communication style best. You must demonstrate that other’s don’t and that has brought conflict and distress to the service user and that distress has not been addressed or is not resolvable. Again a long running issue only will count.
Here are examples of reasons that have carried weight in the case law.
Use the Existing Financial Deputy as an Asset
- Evidence of Need: In your Form COP1B, argue that because his brain injury is severe enough to require court-managed finances, his care, therapy, and housing needs are equally complex and interlinked.
- Cooperation: If you are the financial deputy, (unlikely in negligence cases) state that holding both roles ensures seamless coordination between his funding and his direct care. If a professional is the financial deputy, state that you need welfare status to formally collaborate with them on funding his therapies.
Tailor Your Welfare Argument
The court rarely grants welfare Deputyships to parents of 18-year-olds unless a clear necessity is proven. Frame your argument around his brain injury transition.
- The Transition Cliff: Explain that moving from child to adult social services or paediatric to adult medical teams introduces entirely new professionals who do not know his history or specific rehabilitation needs.
- Avoid “Best Interests” Deadlocks: Argue that his complex brain injury requires rapid, consistent, day-to-day decisions regarding neuro-rehabilitation, speech therapy, specialist educational input and specialised equipment that cannot wait for slow local authority “best interests” panel meetings.
An example of a strong case
Imagine an adult son with profound autism and a severe learning disability.
Over five years:
- there have been three different care providers;
- four placement breakdowns;
- repeated disputes over restraint;
- disagreements about medication;
- numerous safeguarding meetings;
- several Court of Protection applications;
- professionals rotate frequently, but his mother has been his consistent advocate since birth and understands his unique communication.
A judge might conclude:
“This is not about preferring a parent over professionals. It is about whether appointing a deputy would provide stability, continuity and effective decision-making that the existing arrangements have repeatedly failed to achieve.”
That is the sort of practical benefit the Court of Protection is looking for.
In practice
The strongest applications usually combine several factors. A parent is more likely to succeed if they can demonstrate:
- a history of recurring welfare decisions (not isolated disputes);
- objective evidence that the current arrangements have repeatedly broken down;
- that they have worked constructively with professionals rather than obstructively;
- that deputyship would reduce conflict and promote the person’s best interests; and
- that the powers sought are proportionate and tailored to the person’s needs, rather than seeking unrestricted control.
If you only want control over a specific issue rather than ongoing control, it is an option that is far easier to get approved.
If the person lacks mental capacity
Under the Mental Capacity Act 2005, doctors, hospitals, social workers, and care providers can make decisions in the person’s best interests without a deputy being appointed.
As a close family member, you are usually consulted about:
- medical treatment
- where the person lives
- care arrangements
- day-to-day welfare decisions
Although you don’t have the legal authority to make every decision yourself, your views should be taken into account.
If professionals disagree with you
If there is a serious dispute—for example over:
- major medical treatment,
- where the person should live,
- contact with family,
You can ask the Court of Protection to decide that specific issue. This is often simpler than applying to become a deputy because the court deals only with the particular disagreement rather than appointing someone with ongoing authority.
You will need to fill in the forms above, namely COP1, COP1B, COP3, COP24.
Then read this Gov. page for further information https://www.gov.uk/oneoff-decision-personal-welfare Applying for one off decision
COSTS (These can change at any time, so always check) Fairly similar whether for single issue or full deputyship
- NELLIE supports (MCA Assessment) £600 + VAT
- Solicitor’s fees should you decide to ask a solicitor to complete the application.
- £432 Application to Court of Protection
- If a Hearing is required it is £266
- You could get a reduction of fees if you are on certain benefits or a low income. It is based on your income not the disabled persons.
- A health and welfare deputy does not need to pay an annual supervision fee as a financial affairs deputy would. Neither do they pay a security bond.
2026 a Draft Code of Practice which will cover the MCA and include Deputyship is under consideration by the Government
The government has recently published a new draft version of the MCA (Mental Capacity Act) Code of Practice, which provides guidance on the operation of the MCA generally, including up-to-date guidance on the approach that the Court will take to the appointment of welfare deputies. This was an important clarification because, before this, the existing Code of Practice said that a welfare deputy would only be appointed in the ‘most difficult cases’. We now know that this is not correct.
The New Draft Code of Practice which covers some of the duties of a H&W Deputy, include:
The 2022 draft Mental Capacity Act Code of Practice did not fundamentally change the law on health and welfare deputyship, but it did provide much clearer guidance on when the Court of Protection should consider appointing a deputy and how deputies should exercise their powers.
Here’s a summary of the key points.
- There is no presumption against appointing a health and welfare deputy
The draft makes clear that the Court of Protection should not start from the assumption that health and welfare deputies should never be appointed. Instead, each case should be decided on its own facts.
This reflects the approach taken in a number of Court of Protection judgments, where judges have criticised the idea that such appointments are only made in the “rarest of cases.”
- Appointments remain exceptional
Although there is no presumption against appointment, the draft emphasises that deputies should only be appointed where they will provide a real practical benefit that cannot be achieved through the ordinary best-interests decision-making process under the Mental Capacity Act.
Examples include:
- repeated disputes about care or treatment;
- complex and ongoing welfare decisions;
- situations where a single decision-maker would improve consistency and reduce conflict;
- safeguarding concerns requiring continuing oversight.
The court should avoid appointing a deputy simply because family members disagree with professionals.
- The least restrictive principle still applies
The draft stresses that appointing a deputy is itself a significant interference with a person’s autonomy.
The court should therefore consider whether:
- individual best-interests’ decisions are sufficient;
- other legal mechanisms are available;
- appointment is proportionate.
- Deputies must involve the person
A welfare deputy should:
- support the person to participate in decisions as far as possible;
- consider their wishes, feelings, beliefs and values;
- consult those interested in the person’s welfare;
- make decisions in accordance with the statutory best-interests checklist.
The deputy cannot simply substitute their own opinion.
- Deputies are supervised
The draft reiterates that deputies:
- only have powers granted by the court order;
- remain accountable to the Court of Protection;
- are supervised by the Office of the Public Guardian;
- may be required to report on how powers are exercised.
- Limits on a deputy’s powers
Unless specifically authorised, a welfare deputy cannot:
- make decisions outside the scope of the court order;
- demand treatments clinicians are not professionally willing to provide;
- override legal duties owed by public authorities;
- consent to deprivation of liberty where separate legal authority is required.
- Relationship with professionals
The draft encourages collaborative working. Professionals should recognise the deputy’s legal authority within the terms of the order, while deputies should work constructively with clinicians and care providers.
If disagreements arise, attempts should be made to resolve them before returning to the Court of Protection.
As of 3 August 2026, the UK Government has not announced a publication date for a new draft Mental Capacity Act Code of Practice specifically covering health and welfare deputyship.
The current position is:
- In 2022, the Government published a draft revised Mental Capacity Act Code of Practice for consultation. That draft included updated guidance on the appointment of health and welfare deputies, reflecting developments in Court of Protection case law, but it was produced alongside the planned implementation of the Liberty Protection Safeguards (LPS).
- Following the change in government and the postponement of LPS implementation, that draft was not finalised.
- The Government has since stated that it intends to implement LPS and launch a new public consultation in the first half of 2026, followed by an updated Mental Capacity Act Code of Practice.
- The current Code Of Practice was produced in 2005, so finalising the Draft Proposals seems to be a very slow process and what input parent’s are allowed is unknown. https://assets.publishing.service.gov.uk/media/5f6cc6138fa8f541f6763295/Mental-capacity-act-code-of-practice.pdf
However, there has been no announcement confirming that consultation has begun or giving a publication date for a new draft Code. Based on the information currently available, the Department of Health and Social Care and the Ministry of Justice have not committed to a timetable for publishing the revised draft.
Crucial Advice for Applicants Because the formal update to the Code of Practice is still stalled, legal professionals must actively bypass the old 2007 text where case law has superseded it. If you or someone you know is applying for welfare deputyship, you should rely directly on the *Re HB judgment to argue that a deputy appointment will practically “enhance” decision-making, rather than waiting for a newly published code
A Brief list of Legal Cases relating to Health and Welfare Deputyships for Parents demonstrating the difficulties
These COP cases have shaped the development of the new proposed draft particularly the Re: HB
