Happy 18th birthday!! or is it?
An eighteenth birthday is a milestone for any family. It is the coming of age. A time of independence and maturity. Not to mention the time for that first legal drink, cakes, balloons and the big step into the future. After the birthday celebrations have died down and the balloons have all gone flat life returns to normal. But is this the case for everyone?
Up until an eighteenth birthday parents of all children can make decisions in relation to property, finances and health and welfare needs for their children as they are the responsible parent. From eighteen this all changes. If your child has capacity they become and adult, become legally responsible for their own actions and can make their own decisions. You would expect this to be different for an eighteen year old with learning difficulties, but it isn't. In the eyes of the law an eighteen year old is now an adult, although they may lack capacity to make decisions for themselves because of their disability. For the parent this can mean they are not now asked to make decisions on their behalf of their child in relation to finances or indeed health and welfare. So what happens?
If a child has capacity, despite their disability, it may be possible to put in place a property and affairs and a health and welfare lasting power of attorney. These documents will enable people to assist in respect of all financial or health related decisions. It is always worth taking expert professional advice to see if instructions can be obtained. Young adults with disabilities should never be written off and inventive ways can be used to obtain instructions. Communication just needs to be at their level and in a way they will understand.
If capacity levels are not sufficient then the option is to apply to the Court of Protection for a financial deputyship order or a health and welfare order. A deputyship order will allow a parent to manage a bank account and collect benefits, pay rent and deal with any daily living costs their child may incur. If their child is fully funded and does not operate a bank account a parent can apply to the DWP to be an appointee to enable them to manage state benefits. Whilst difficult to get, it is also possible to apply for a deputyship order to enable a parent to make decisions about a child's health and/or welfare needs. After all, as a parent, don't you want to be the one to make the decisions about your child's ongoing education and accommodation needs, not to mention any medical interventions that may be required in the future.
Applying for a deputyship order can feel like you are using a sledgehammer to crack a nut. Costs, paperwork and time can seem to outweigh the benefit that a deputyship order brings but do not be put off. A deputyship order will ensure that the decision making power remains with those who know and support a child the most.
We see many clients at Argo who do not take the lead in putting in place these documents for their children. Distressed parents on the phone because the local authority and medical team are advocating treatment the family don't agree with, the local authority placing a child in a home their parents deem to be unsuitable, changes in educational placements without family agreement are all cases that we have had through the door at Argo. Each of these could have been dealt with much more easily with a deputyship order or a lasting power of attorney.
If you are the parent of a child with a learning or physical disability please take the time to obtain advice about how best to protect your children for their future and ensure that your family remain in control of their future. Please do not delay in getting advice. A phone call costs nothing.