When the child reaches 18 the usual celebrations are often tempered by a deep anxiety about what the future will hold. It is important to understand your legal position and the options open to you, to make sure you can continue to have a voice in any decisions affecting your son or daughter.
Once your child reaches 18, they are treated as an adult and have all the rights that go along with attaining majority. Even if he or she has a learning disability your parental responsibility for them will cease at 18, and your legal rights and responsibilities as a parent will end. So, for example, your right to consent to medical treatment on behalf of the child or to make financial decisions for them will no longer be recognised.
If your child has a form of disability which affects their capacity to make these important life decisions, then you need to turn to the provisions of the Mental Capacity Act 2005, which sets out a framework for making decisions on their behalf.
As the law assumes someone has capacity unless it is proved otherwise, the first step is to consider whether you need to have an assessment of his/her capacity to make the particular decision under consideration.
Capacity is ‘decision ‘specific’ so whilst someone may not be able to fully understand the pros and cons of complex medical treatment or financial decisions, they could possibly manage a budget or decide whether or not to take antibiotics for a minor infection. In some cases, you will need to ask a professional such as a doctor or social worker to assess his or her capacity to make the specific decision under consideration
If your child has a serious learning disability caused for example by a brain injury or a severe behavioural disorder it may be obvious that they lack capacity to make decisions in most areas of life Your child will probably already have an Education Health and Care Plan (EHCP) which will continue until they reach the age of 25, and he or she will almost certainly be on the radar of your local social services.
In the years between 16 and 18 most local authorities gradually transition the child over to adult services. You should ask for a Needs Assessment under the Care Act 2014 as the local authority must assess whether your child has ‘eligible needs’ and if so how those needs can best be met.
Most parents will be concerned that social services now are making decisions for their child and want to ensure they have a say. Social services use the framework set out in the Mental Capacity Act to make decisions ‘in the person’s best interests’ and the Act states that they must consult parents or others who have responsibility for the care of the individual.
If there is a serious dispute about for example medical treatment or where the child should live, or who should look after him or her, then it is possible to apply to the Court of Protection for a decision as to what is in the person’s best interests
If your child has independent financial means, for example an inheritance or an award of damages for personal injuries, the court can appoint a ‘deputy’ to make financial decisions on their behalf. The court may also appoint a deputy to make decisions about ‘health and welfare’ but this is much less common and the court has said it prefers to make individual decisions itself rather than hand over this responsibility to a parent, even though the parent may be well intentioned.
Your child may already be receiving Disability Benefits and if so, you may well already be his or her ‘appointee’. The benefits system is complex, and it is worth taking early advice as to what benefits your child will become entitled to once they leave school. If going on to college, find out before they start their course if they are entitled to Universal Credit.
If your child has a disability, even if this does not affect their ability to make decisions and live a full and active life, it may be sensible to consider a Disabled Persons Trust when making your own will. If the child stands to inherit from a parent or relative the inheritance will be treated as capital and most probably affect the person’s entitlement to means tested benefits.
If the bequest is held in a Disabled Persons Trust it is not taken into account for the purposes of mean’s tested benefits.
Here at Andrew Isaacs Law, we can advise on a range of issues that affect you and your family. Contact us today to arrange a consultation, because your family matters.