Court of Protection clarifies the powers of Deputies for Health and Welfare
The Court of Protection in Re XY [2025] EWCOP 55 (T2) handed down an important decision about the scope of the powers of welfare deputies.
There were two points of general application. The first was whether a best interests decision about internet and social media use fell within the scope of a personal welfare deputyship order. The second was whether the Court of Protection has the power to make a best interests decision instead of a deputy who has the authority to make that decision and is willing and able to make it.
Her Honour Judge Hilder found in relation to the first point of general application that a deputyship appointment order positively specified the extent of a deputy’s powers. She concluded that internet and social media use was ‘sui generis’ and distinct from other forms of contact and care, and as such, it must be considered separately to other – offline – leisure and social activities. Further, if a proposed deputy wished for authorisation in relation to internet and social media use then, at the time of application, it should be spelt out clearly and with reasons.
In respect of an application to then vary the deputyship order to include authorisation to make decisions about XY’s use of the internet and social media, HHJ Hilder empathised that the basic legal framework for welfare decision making is the collaborative decision-making process set out in sections 1, 4 and 5 of the Mental Capacity Act 2005. She stated that while such collaborative processes may not be an easy solution, particularly in times when public resources are stretched, ‘it was very clearly not the intention of Parliament that deputyship should be a route around such real-world difficulties.’
Local authorities may wish to note the more restrictive approach taken by the court to the use of personal welfare deputyships taken where notified of applications for personal welfare deputyships.
In relation to the second point of general application HHJ Hilder made clear that, although her observations were obiter, it might be helpful for it to be made clear that the Court is the ultimate arbiter of P’s best interests i.e. the Court of Protection does have the power to make a best interests decision over a deputy.
Peggy Etiebet acted for the London Borough of Wandsworth. The local authority’s arguments on all three issues were accepted by the court.
