Welfare Disputes

When a vulnerable person is unable to make decisions for themselves in respect of their health and welfare, decisions need to be made for them in their best interests. 

Examples of decisions that may need to be made for that person are:

• Where they should live;
• What care they should receive;
• Whether they should undergo a particular medical treatment (such as whether to undergo surgery or have a vaccination);
• Whether life sustaining treatment should be withdrawn;
• Who they should have contact with; and
• Whether they are able to consent to marriage and/or sexual relations.

A person who does not have capacity to make their own decisions, and who has not appointed their own Attorney (by way of a ‘Lasting Power of Attorney’), will have a Deputy appointed for them by the Court of Protection. The Deputy can then make decisions on the person’s behalf.

A Deputyship Order can be granted to a family member or close friend but can also be given to a professional person, such as a Solicitor. In some situations, decisions are made by social services or health authorities. For example, if the person is in residential care or in the hospital.

For more information, see our Financial and Health & Welfare Deputyships page.

Different rules apply in the Court of Protection depending on whether the application concerns property and financial affairs or health and welfare issues.

In cases relating to property and financial affairs, the costs of proceedings will usually be met by the person lacking mental capacity. In cases relating to a person’s health and welfare, the general rule is that each party must bear their own costs. This means that you will generally be responsible for your own legal fees.

However, the Court of Protection does have the power to depart from these rules, should this be justified in the circumstances. For example, if one party has acted unreasonably in making an application, failed to co-operate with the other parties or failed to comply with a rule or Court Order. We can advise you as to the merits of making a costs application or where there is a risk of a costs application being made against you.