Achieving the Impossible – Welfare Orders in the Court of Protection

Date Added 24.11.15

The Court of Protection is not an institution which is well-known to the general public. It certainly wasn’t anything which Mr & Mrs Smith had heard of when they came to Tollers for help in 2014.

Mr & Mrs Smith are the proud and caring parents of a 17 year old son, Timothy, who was born with severe learning difficulties and who continues to suffer from a number of medical issues.

Timothy was born with kidney failure and received dialysis and a kidney transplant before the age of three. As a result, he is required to undergo frequent check ups at his local hospital. Timothy also continues to suffer from regular seizures, for which he is medicated and he requires constant one-to-one care and monitoring as a result of his conditions and learning difficulties.

It was shortly before Timothy’s 18th birthday when Mr & Mrs Smith approached Tollers, after having been told by Timothy’s doctors that they would no longer be authorised to make medical decisions for him when he reaches adulthood. After 17 years of making decisions for Timothy, ensuring he received proper care and treatment and attending check ups and respite centres, Mr & Mrs Smith were told that they would lose the right to do this as Timothy was becoming a legal adult.

Mr & Mrs Smith were given no guidance or advice on their options for continued control by the Doctors. They therefore sought legal advice from Tollers’ Chartered Legal Executive Tonina Ashby, who recommended an application for a combined Deputy Order, both for Property and Financial Affairs and for Health and Welfare.

“On discussing Timothy’s situation with his parents it became evident that this was an exceptional case and that a general Welfare Order may be possible. We had received notice from established Judges and Barristers that general Welfare Orders were practically impossible to come by, but this was a very particular set of circumstances and both myself and Timothy’s parents felt it was worth an application if it meant that they had the chance to continue to maintain Timothy’s finances and to ensure his welfare.” – Tonina Ashby

A combined Deputy Order application was issued in early 2015 and proceeded to be successfully granted in June 2015.

Mr & Mrs Smith were granted ongoing permission to continue to manage their son’s financial affairs and also to make decisions in relation to all aspects of his personal welfare, such as living arrangements, diet, daily routine and consenting to medical and dental treatment.

“The family were understandably overwhelmed with emotion when they were notified that the application had been successful, after coming up to many “brick walls” with Timothy’s care previously. I was incredibly pleased that the application was a success as it meant minimum disruption to the life Timothy had been accustomed to, having never been capable of making his own decisions. It is safe to say that no other Deputy  would be able serve Timothy better than his own mother and father and I am thankful that I was able to be a part of this process and to assist them to a successful outcome.” –Tonina Ashby

The Court of Protection: A Background

The Court of Protection was created by the Mental Capacity Act 2005 to assist the vulnerable and to address the issue of those who are unable to make decisions for themselves (known in these applications as “P”). It intervenes to grant applications and authorise activities on P’s behalf which are deemed to be in P’s best interests.

There is a perception that general personal welfare orders are difficult to obtain and rarely granted and in the majority of cases, this will be true. According to recent statistics, there have been less than 1,000 welfare orders granted by the Court of Protection since 2007, compared to around 100,000 for property and affairs. The perception is that welfare decisions can only be made in relation to specific issues, such as a particular operation or treatment on behalf of P. It is also suggested that these orders are only applied for or granted where there is some form of dispute, particularly with the local authority.

Whilst there must be exceptional circumstances for a general application to be successful, as with the case above, it is clearly wrong to assume that there is no chance of obtaining an order such as this.

The parents of P in this instance had no knowledge of these applications before contacting Tollers and it therefore goes to show that they are not widely known. Many are also unaware that this is the route to obtain control of finances, where your loved one does not have sufficient capacity to create a Power of Attorney.

It is important to raise awareness of these orders and their benefits in order that other parents and families in similar positions can get the rights they require to look after those they love.

If you would like to speak to a specialist about the Court of Protection or to consider your case, please contact Tonina Ashby on 01438 901 096 or by e-mail at Tonina.ashby@tollers.co.uk

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