Appointing a Welfare Guardian - Personal Care and Welfare

8 February 2022

A welfare guardian is a person appointed by the Court under the Protection of Personal and Property Rights Act 1988 (“the Act”) to make decisions for an individual when they cannot make decisions for themselves.

For example, when someone develops dementia, or has a traumatic brain injury, or has a significant mental disability. The main objective of the Act is to make the least restrictive intervention possible,  and to encourage the individual to make their own decisions and develop their decision-making skills as best as they can.

Appointing a welfare guardian for someone is the most drastic personal Order the Court can make as it goes against the right of self-determination. It should only be made if the Court is satisfied of these two things:

  1. The individual wholly lacks the capacity to understand and foresee the consequences of decisions in relation to any particular aspect or aspects of their personal care and welfare.
  2. There is no other satisfactory way to ensure the person is looked after.

What does wholly lacking capacity mean

Everyone is presumed to have capacity. It is up to the applicant to show that the individual is wholly lacking capacity. Generally, the best way to show this is with a letter from a doctor. However, it can also be done with letters from friends and family. The Court needs to be shown that the individual’s ability to understand the nature, and to foresee the consequences of options available to them is so limited by intellectual disability, mental illness, or both, that they can’t make a true and informed decision.

This doesn’t mean that just because someone is ignorant, or they act recklessly, that the Court would classify them as lacking capacity to make their own decisions. The issue must arise from mental limitation, illness or disability.

In order to make a true and informed decision you need to consciously make a selection between two or more options. For example, you can give a child the choice between two types of medication. They have the ability to pick an option, but their choice cannot be seen as true and informed choice. They lack the understanding to understand the proper consequences of one option over the other.

An individual may have limited capacity in some areas, but wholly lack capacity in other areas. For example, they may be able to make decisions about their basic day-to-day matters like what they eat, when they wake up, what to watch on TV but then lack the capacity to make decisions in more complicated areas.

Please contact Norris Ward McKinnon if you need any assistance with Welfare Guardianship Orders.

Matthew Barnett is part of our Family Disputes team at Norris Ward McKinnon.