What happens when your loved one with special needs reaches the age of 18?
What happens if your husband or wife, mother or father, brother or sister… suddenly lose the mental capacity to make decisions for themselves?
We all know that time goes by very quickly and suddenly your child or grandchild you have looked after since birth has now reached the age of 18 and you are no longer legally responsible for them. They are now adults and are expected to look after themselves. BUT can they? Can they really manage on their own without help, especially if they have special needs or a disability.
When a young adult reaches the age of 18 years they are seen as legally responsible for their own decisions if they are deemed to have the necessary capacity. They are expected to make decisions for themselves and engage directly with the Local Authority.
You would think that if your loved one does not have the mental capacity to look after themselves, surely you as parents or grandparents who have looked after them all their life, that understand them better than anyone else, who love them more than anyone else, can just step in and assist them in decision making.
Unfortunately, this is not the case. The Local Authorities, schools and Social Services can make decisions without you being involved. In order for you to make decisions on behalf of your young person you will need legal authority from the Court of Protection to do so.
If your young person does not have the mental capacity to make their own decisions, you can assist if you are appointed by the Court of Protection as their Deputy.
The decisions you might need to make can be summarised as follows:
If you are appointed as Deputy for your son or daughter, your grandchild, your brother or a sister or any other family member, it is YOU who can make the decisions in the best interest of your relative. You can use your unique knowledge of your relative’s needs to assist local authorities, the schools or colleges and as their deputy you have the final say.
There are two set of Powers granted by the Court of Protection; personal welfare and property and financial affairs. Which powers are granted will depend on the individual circumstances of the young person concerned.
The Court can provide you as deputies with the powers to manage your loved one’s ongoing financial affairs and property if they are not capable to do so. This will offer protection to the young person from financial abuse, limit the risk of them being taken advantage of and of course the Deputy will make sure that all the financial needs of the young person are fully met.
The Court will only grant a deputy power to make decisions on young person’s health and welfare where it would be impractical for the Court to make those decisions. An example would be when a person suffers from multiple learning disabilities which require regular decisions to be made about their healthcare. In this instance, a parent or a close relative might apply to be appointed as a deputy with authority to make such decisions.
The best time to apply is when your young person is around 16/17, so that when parental responsibility ceases at 18 the deputyship order is already in place.
A point to note is that the Court of Protection deals not only with the young people who lack mental capacity to make decisions for themselves. There are cases when you wife or husband, your brother or sister suddenly lost the mental capacity to make decisions and there are no Powers of Attorneys in place. It might be that your mother or father is suffering from Dementia and you will need to sell their house to pay for care. In these circumstances, if the person who has lost the mental capacity does not have a Power of Attorney in place, the only option would be for you to apply to the Court of Protection to be granted the necessary legal powers to make decisions on their behalf.
You might have been told that the Deputyship appointments are impossible, that you would not be successful in getting deputyship, that nobody gets health and personal welfare deputy powers… This in not correct! Parents can and do succeed in obtaining both types of deputyship.
Contact us to discuss the best options for your young person and your family. Our Private Client Solicitors offer a free of charge initial meeting to talk through deputy powers. Call 0330 0945 500, email email@example.com or complete our Contact Form and we'll get back to you.