• Rosa’s daughter, Domenica, is 24 and has Down’s syndrome and a learning disability. Rosa’s family and two others have won their test case arguing that the Mental Capacity Act 2005 is not clear as to when a welfare deputy may be appointed. The Code of Practice to the Mental Capacity Act 2005 states that welfare deputies should only be appointed in the most difficult of cases.

    This has been a bar to a welfare deputy being appointed where a learning disabled child has become an adult and the parent is then unable to carry on making decisions in their child’s best interests. While under 18, the parents can take decisions about their child’s welfare on behalf of their children but once the child has reached adulthood this stops. This has not been considered to fall within ‘the most difficult of cases’.

    Rosa Monckton and the other families argued the Court should adopt a test that flows directly from the Act and consider what is in the young person’s best interests with an emphasis on what they actually want. Usually, this would be their parent or close family and not professionals they do not know.

    As reported in The Times yesterday, Mr Justice Hayden said it should be emphasised unambiguously that there should be no presumption against the appointment of a welfare deputy. He also said the section of the Code referred to above should be revisited. As the judgment is binding the Ministry of Justice must further review the Code and act upon the judge’s finding.

    This judgment may allow more parents and other close relatives in similar circumstances to successfully apply for welfare deputyships.

    For guidance and advice please contact our Private Client team.

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