Law Commission recommendations
The Law Commission recently reviewed the Protection of Personal and Property Rights Act 1988 (PPPR Act). This legislation governs how decisions are made for adults who lack capacity and can no longer make some decisions for themselves.
The PPPR Act applies widely; it includes adults who have declining capacity due to dementia, lack capacity due to intellectual disabilities or have a temporary loss of capacity (for example) due to injuries.
The Commission has made a number of recommendations for reform, particularly regarding property managers and welfare guardians who are appointed by the court to make decisions for people who cannot make decisions themselves.
Overall approach
The Commission recommends repealing the PPPR Act and replacing it with new legislation. The biggest shift is away from asking what is in a person’s ‘best interests’ (often considered paternalistic), and towards asking what the person’s own wishes, values and rights are, and how those can be respected.
Court-appointed decision-makers would be expected to support the person’s participation in decisions wherever possible; they would only step in to decide for them where genuinely necessary.
Changes to the roles of property managers and welfare guardians
The Commission also recommends renaming ‘property managers’ to ‘property representatives’ and ‘welfare guardians’ to ‘welfare representatives.’ The change reflects a shift in emphasis: these representatives would not simply make decisions they think are best, but would instead be required to represent the person’s wishes and values as far as possible.
Representatives would have clearer statutory duties. They would be required to act honestly, in good faith and with reasonable care, understand the person’s circumstances, support the person to participate in decisions, communicate in a way the person can understand, respect the person’s rights, and make decisions centered on the person’s wishes and values.
The scope of appointments might become more limited than they are currently. Representatives would only make decisions that the person lacks capacity to make and only where someone else genuinely needs to make those decisions. If a person retains capacity for some decisions, they would continue making those decisions themselves.
Property representatives would continue to have financial reporting obligations, and the existing financial limits on decisions they can make without court approval would be modified.
Welfare representatives could also be made subject to reporting requirements where appropriate. Representatives would also be expected to notify the court if significant changes occur that affect their suitability or the ongoing need for the appointment.
The court would have greater flexibility to tailor appointments. It could appoint multiple representatives, divide responsibilities, impose reporting obligations, require consultation between representatives and include safeguards where conflicts of interest exist.
Where a representative is also a spouse or partner, conflicts of interest would not prevent appointment, but specific conditions might be imposed from the outset to ensure conflicts of interest are handled appropriately.
Reasons for the proposed changes
Currently, many court-appointed representatives are family members with no legal training. The Law Commission found that the current duties are scattered between the PPPR Act and case law, making the roles difficult to understand. It recommends a single, clear list of statutory duties, and clearer obligations for representatives, so they are better equipped to understand their role and responsibilities.
The current law is also viewed as not sufficiently focussed on the person for whom decisions are being made. Property managers and welfare guardians are not always aware that they need to consider the person’s rights, wishes and values, rather than just making the decision they think is best.
Conclusion
Overall, the recommendations focus on encouraging people to participate in decisions which affect them and make as many decisions as they reasonably can make, but supporting them where needed. Where representatives are appointed, their role is to be as limited as possible and proportional to the lack of capacity in question.
If these changes become law, representatives will have clearer obligations, and will be accountable for respecting the rights, wishes and values of the person for whom they are making decisions.
The recommendations have not yet been considered by Parliament and may still evolve before any new laws are passed. It is, however, worth being aware that the roles and obligations of property managers and welfare guardians are likely to change in the coming years.
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