Re HB: A Best-Interests, Fact-Specific Framework for Appointing Personal Welfare Deputies (Including Transition Cases) and a Cautioned Role for “Autonomy”
1. Introduction
In Re HB (Appointment of Personal Welfare Deputy) [2026] EWCA Civ 960, the Court of Appeal (Civil Division) allowed an appeal from the Court of Protection
([2026] EWCOP 12 (T2), HHJ Beckley) concerning the appointment of personal welfare deputies under
s.16(2)(b) Mental Capacity Act 2005 (“MCA 2005”).
The subject (“P”), HB, is a young adult with profound impairments (including severe learning disability, autism, non-verbal communication, complex care needs, and epilepsy),
who lacks capacity in many domains, including personal welfare decisions. The appellants are HB’s parents (JB and SB), already appointed as deputies for property and affairs,
who sought appointment as welfare deputies (jointly and severally) to support decision-making across a range of welfare matters.
There was no opposition to the deputyship application; the local authority was neutral. The application was refused on the papers and again after reconsideration.
On appeal, the Official Solicitor acted as Advocate to the Court, and the Public Guardian intervened.
The key issues were: (i) when it is in P’s best interests to appoint a welfare deputy given the MCA’s preference for collaborative decision-making and for court decisions over deputy decisions;
(ii) how “autonomy” should feature in the analysis; and (iii) whether, and how, the court should tailor deputyship powers rather than adopt a binary grant/refuse approach.
2. Summary of the Judgment
- The appeal was allowed; the Court of Appeal held the judge was wrong to refuse the application.
- The judge’s refusal was materially grounded in a finding that collaborative decision-making had worked in HB’s best interests; that conclusion was not supported by the evidence of repeated parental “battles” to secure appropriate provision.
- The Court emphasised that deputyship is not an “all or nothing” decision: under s.16(6) MCA 2005 the court can appoint deputies on terms and may limit scope and duration (s.16(4)(b)).
- The Court treated “autonomy” as an elastic and over-used concept, potentially unhelpful as a decisive tool in welfare deputyship decisions; the correct focus is the statutory framework (best interests, least restriction, participation, consultation) and, where helpful, more concrete concepts such as dignity and quality of life.
- The Court identified (non-exhaustive) features that may support appointment of a welfare deputy, especially in “middle ground” cases where decisions are recurrent and time-sensitive.
- The Court proposed granting the deputyship in principle but remitted to a Tier 2 Court of Protection judge to determine the precise scope and duration, noting the Public Guardian’s support for time-limited welfare deputyships, particularly for young adults in transition.
3. Analysis
3.1 Statutory Framework: The Structure of s.16 and the Centrality of Necessity and Proportionate Delegation
The decision is anchored in s.16 MCA 2005. The Court highlighted the statutory ordering:
the court may either (a) make the decision itself (s.16(2)(a)) or (b) appoint a deputy (s.16(2)(b)).
This sequencing informed the Court’s reading that the legislation gives “pre-eminence” to court-made decisions, while still permitting deputyship where best interests require it.
Crucially, s.16(4) requires the court, when deciding whether appointment is in P’s best interests, to have regard to:
- s.16(4)(a): a decision by the court is preferred to appointing a deputy to make a decision; and
- s.16(4)(b): deputy powers should be as limited in scope and duration as reasonably practicable.
The Court’s criticism of the first-instance approach was not that the judge cited s.16(4), but that he (i) proceeded on an unsustainable factual premise about collaboration,
and (ii) treated the matter too binary, without engaging s.16(6)’s capacity to tailor the order.
3.2 Section 5 MCA 2005 and “Collaborative Decision-Making”: Not a Universal Substitute for Deputyship
The first-instance judge stressed the MCA’s collaborative model: consultation under s.4(7) and the protective “defence” in s.5 for acts done in connection with care/treatment
where D reasonably believes P lacks capacity and the act is in P’s best interests.
The Court of Appeal accepted the general premise that the MCA rejects a blanket guardianship model and that s.5 supports ordinary welfare decision-making without formal status.
However, it made two important clarifications:
- Information-sharing and consultation are part of the statutory design; failures by services to share information or consult properly are common and legally significant, but deputyship is not a universal “fix” for institutional risk-aversion or resource pressure.
- Decision-making sits on a spectrum: routine day-to-day acts (often s.5 territory), court-only decisions (e.g. life-sustaining treatment), and a substantial “middle ground” where a deputy may appropriately facilitate best-interests decisions over time.
3.3 Findings of Fact: “Collaboration Worked” Was Not Open on the Evidence
A central appellate holding was that the judge’s conclusion that collaborative decision-making had worked in HB’s best interests was not borne out.
The evidence showed repeated instances where the parents had to challenge or correct professional/authority decisions, including:
- securing suitable education and residential placement (including a late concession only after tribunal proceedings);
- resisting unsuitable options presented for economic reasons; and
- ongoing uncertainties in adult services responsibility and future placement, with a “stream” of welfare decisions anticipated.
Because that factual conclusion materially underpinned the refusal, the decision “must fall” on that basis alone.
3.4 Tailoring Deputyship: s.16(6) Rejects a Binary Grant/Refuse Model
The Court of Appeal treated as an error the implication that the court could only accept or reject the application as framed.
Even if certain requested powers (e.g. “diet and dress”) were impractical or undesirable as a matter of day-to-day operation, the judge:
- could have limited powers and/or carved out domains;
- could have imposed conditions; and
- could have set an appropriate duration.
This aspect of the judgment is practically important: it reframes welfare deputyship as a configurable tool whose legitimacy is often tied to careful drafting,
rather than a “status” award or a blanket transfer of decision-making.
3.5 “Autonomy”: An Elastic Concept, Not a Free-Standing Decisive Test
Ground 3 challenged the first-instance conclusion that deputyship was an “unnecessary infringement” of HB’s autonomy.
The Court of Appeal’s treatment is notable for its broader jurisprudential guidance:
- “Autonomy” is not a term used in the MCA 2005 and is often employed as shorthand for underlying aims (least restriction, participation, respect for the person).
- It is “over-used” and “elastic”; it may be an uncertain tool for deciding deputyship, especially across the wide spectrum of impairment covered by the MCA.
- In some cases (including this one), deputyship may enhance the person’s ability to influence decisions, because it enables those who best understand P’s cues and preferences to ensure that P’s wishes and feelings are properly captured and carried into best-interests reasoning.
- The Court suggested that dignity and quality of life provide a more concrete analytical framework than abstract autonomy rhetoric, while remaining faithful to the MCA’s structure.
3.6 A Structured, Fact-Specific Set of Indicative Factors for “Middle Ground” Deputyship
The Court declined to issue rigid “guidelines” but identified features that may support welfare deputyship in the “middle ground”. These included:
- Special relationship: the proposed deputy has particular insight into and ability to communicate with/for P (e.g. close family who understand P’s cues).
- Enhancement of P’s viewpoint: P’s wishes/feelings/beliefs/values are more likely to be realised through deputyship (linked to the patient-centred approach in Aintree).
- Multiple foreseeable decisions: a series/stream of decisions is anticipated (echoing Watt and the Code example at paragraph 8.39).
- Transition: moving from children’s to adult services may justify short-term, stabilising solutions; the Court expressly contemplated time-limited deputyship in this context.
- Failure to apply the MCA framework: evidence that public bodies have failed or may fail to consult properly and apply ss.4–5.
- Need for prompt and agile decisions in evolving circumstances.
This is a key development in practice: it validates deputyship not only for one-off “grave disputes” but also for repeated, interrelated decisions where court involvement each time would be disproportionate.
4. Precedents Cited and Their Influence
4.1 Lawson, Mottram and Hopton (Appointment of Personal Welfare Deputies) [2019] 1 WLR 5164 (“Lawson”)
Lawson has been heavily relied upon as discouraging welfare deputyship as “exceptional”.
The Court of Appeal took a nuanced approach:
- It accepted some of Hayden J’s propositions (e.g. fidelity to the MCA’s text; respect for adult legal status; balancing Convention rights; best-interests as evaluative).
- It explicitly stated that, save for specified parts, Hayden J’s summary at [53] was not reflective of modern law or practice in this area.
This is significant: while not formally overruling Lawson, the Court recalibrated its practical force and opened space for a less restrictive reading of when welfare deputyship may be justified.
4.2 G v E (Deputyship and Litigation Friend) [2011] 1 FLR 1652 (“G v E”)
The Court endorsed Baker J’s description of the MCA’s collaborative design (most decisions taken informally; the court determines disputes of gravity/difficulty),
while also recognising Baker J’s pragmatic point: where a series of decisions is required, repeated returns to court may be contrary to best interests.
This supported the Court’s “spectrum” analysis and its recognition of the “middle ground”.
4.3 Watt v ABC [2017] 4 WLR 24 (“Watt”)
Watt was used to emphasise that s.16(4) introduces factors to be weighed, not an overriding presumption that blocks deputyship.
Charles J’s reasoning supported the appellate court’s view that where repeated decisions are needed, deputyship can outweigh the preference for court-made decisions.
4.4 Re CB [2021] EWCOP 43 (“CB”)
CB was cited as an example where deputyship was sought for “status” and to be taken seriously, which Keehan J considered inappropriate.
The Court of Appeal distinguished that line of thinking from cases like HB’s, where the need is not symbolic but functional:
consistent, informed, timely decisions in circumstances of complex care and service-system volatility.
4.5 Re XY [2025] EWCOP 55 (T2) (“XY”)
XY was used for two propositions:
- Deputyship is not merely an “amplified voice”; it is decision-making authority, so the “positives” must be considered and the order drafted with care.
- Even where a deputy has authority, the Court of Protection may still make best-interests decisions in appropriate cases (noted as obiter in XY and agreed by the Court of Appeal).
4.6 Parr v Cheshire East Council & another [2026] EWCOP 1 (T3) (“Parr”)
Parr provided the immediate comparator: a transition-aged young adult, profound incapacity, committed parent, service failings, and a “stream” of decisions.
The Court did not treat Parr as binding, but considered that the first-instance judge should have given a fuller explanation for departing from it on such similar facts.
More broadly, the Court treated Parr as a legitimate illustration of when welfare deputyship is plainly right.
The Court drew on Aintree to reinforce that best interests must be assessed from P’s point of view as far as possible,
and that wishes, feelings, beliefs and values are “components” of the individualised evaluation.
This underpinned the view that parents who can uniquely interpret P’s cues may enable a more faithful best-interests process.
Winspear supported the practical and legal importance of s.4(7) consultation and how, where consultation is compliant (or properly dispensed with),
s.5 provides protection for acts in connection with care/treatment.
The citation reinforced that the statutory scheme already contemplates family involvement—though, in HB’s case, that involvement had not reliably functioned in practice.
4.9 Re P [2010] EWHC 1592 (Fam) and In re X (A Child) (Capacity to Consent to Termination) (2014) 139 BMLR 143 (“Re X”)
The Court invoked Re P for the policy that, where willing and able, family should take “first place” in care for those whose needs extend into adulthood.
It cited Re X as a caution against loose invocations of autonomy, noting that autonomy may be “qualified” and context-dependent.
5. Impact
- Rebalanced approach post-Lawson: the Court signalled that strong discouragement of welfare deputyship should not harden into an “artificial impediment”. The result is a more evidence-led, pragmatic application of ss.16(4)–(6).
- Greater emphasis on tailoring: courts should consider partial grants, limits, conditions, and time bounds rather than refusing wholesale because some requested powers are inappropriate.
- Transition cases: the Court expressly recognised the children-to-adult-services transition as a context where time-limited deputyship may be particularly justified, aligning with the Public Guardian’s evidence about long-running welfare deputyships and lack of reassessment.
- Autonomy rhetoric constrained: the judgment discourages treating “autonomy” as a trump concept; the analysis should return to statutory duties—participation, consultation, least restriction, and best interests—and to concrete notions like dignity and quality of life.
- Evidence expectations: applicants and judges are guided toward focusing evidence on recurring decision needs, urgency/agility, the applicant’s distinctive ability to represent P’s viewpoint, and demonstrated dysfunction in the s.4/s.5 collaborative process.
6. Complex Concepts Simplified
6.1 What is a “Personal Welfare Deputy”?
A personal welfare deputy is appointed by the Court of Protection to make specified welfare decisions for a person who lacks capacity, within the limits of the MCA 2005.
This may include residence, contact, and consenting to medical treatment (subject to statutory restrictions, e.g. no refusal of life-sustaining treatment).
6.2 Why does the MCA “prefer” court decisions to deputy decisions (s.16(4)(a))?
Because the MCA expects most welfare decisions to be made collaboratively under the best-interests framework, and disputes or very serious issues to be determined by an impartial tribunal.
But this is a factor to weigh, not an absolute bar.
6.3 What does s.5 do (and not do)?
Section 5 does not grant someone a general “right” to decide. It provides a legal protection from liability for acts done in connection with care/treatment if the actor reasonably believes
P lacks capacity and the act is in P’s best interests, having complied with the best-interests process (including consultation where practicable and appropriate).
6.4 Why does “scope and duration” matter so much (s.16(4)(b))?
Deputyship is a transfer of decision-making authority. The MCA therefore requires the court to limit deputy powers and how long they last, so authority is no broader or longer than needed.
Time-limited deputyships can force review and prevent “default” continuation.
6.5 Is “autonomy” the same as capacity?
No. Capacity is a legal test tied to a specific decision at a specific time. “Autonomy” is a broader concept, and the Court of Appeal cautioned that it can obscure the statutory analysis.
In some cases, appointing a deputy can help ensure P’s wishes and feelings are actually captured and acted upon.
7. Conclusion
[2026] EWCA Civ 960 strengthens a practical, statute-centred approach to welfare deputyship.
It confirms that the decision turns on best interests, necessity, and proportionality under s.16, and that the court must engage with tailoring powers under s.16(6)
rather than defaulting to a binary outcome.
The judgment also signals a doctrinal shift in emphasis: “autonomy” should not operate as a free-standing veto on welfare deputyship, particularly for people with profound incapacity and complex needs.
Instead, courts should focus on participation, consultation, least restriction, dignity, and quality of life—asking whether deputyship, carefully limited in scope and time, will better secure
decision-making that is prompt, informed, and genuinely rooted in P’s perspective.