11.02.25

For parents and carers of someone living with Tuberous Sclerosis Complex (TSC), decision-making is part of everyday life. The transition from childhood to adulthood can be daunting when your loved one has additional needs and might not be able to make decisions for themselves.

In this piece, Sarah O’Sullivan has answered some of the commonly asked questions that parents and carers have about how they can manage their loved ones’ personal affairs as they grow older.

When my child turns 18, does that mean I can’t make decisions on their behalf anymore?

The starting point for making decisions on behalf of someone else is mental capacity. If your child is able to make a particular decision, or participate in the decision-making process, they should always be encouraged and supported to do so.

It also depends on the type of decision. If your child has any assets in their own name, such as a bank account or Child Trust Fund, and they lack mental capacity to deal with those, then a Deputyship is very likely to be needed. This is also true for entering into contracts, such as a tenancy agreement.

If your child lacks mental capacity and cannot make an LPA for decisions relating to health and welfare matters (such as medical treatment, the care they receive, their education, and where they live) then these decisions can be made together with the relevant clinical professionals, Local Authority, and social workers. The ‘best interests’ framework under the Mental Capacity Act 2005 is followed to help all involved objectively agree your child’s needs. If there is a dispute, an application can be made to the Court of Protection to make a specific ruling, and/or to be appointed as Personal Welfare Deputy for your child.

What is the difference between LPAs and Deputyship?

An LPA can only be made by someone who is aged 18 or over and has mental capacity to understand the meaning and power given in the document, and who can choose the Attorneys for themselves. LPAs are registered with the Office of Public Guardian (OPG).

A Deputyship comes from an Order made by the Court of Protection. This is made when a person lacks mental capacity to make decisions for themselves, and lacks mental capacity to make an LPA.

There are two types of LPAs and Deputyship – one deals with property and finances, and the other deals with health and welfare decisions. It is very common to have the same Attorneys / Deputies for both types, but it is possible to have different people making different types of decisions.

Will I automatically be appointed as an Attorney or a Deputy for my child? Can anyone be an Attorney or Deputy?

No, an appointment is not automatic. If your child can make an LPA when they have reached 18, they must independently choose who their Attorneys will be.

If they lack mental capacity and need a Deputyship, then you can apply to the Court of Protection to be appointed as their Deputy.

Anyone aged 18 and over who has mental capacity can be appointed as an Attorney, or apply to be a Deputy. However, a person who is bankrupt or under a Debt Relief Order cannot be an Attorney or Deputy for someone’s property and financial affairs.

Do I have authority to make decisions once I have submitted an application for a Deputyship / once LPAs have been submitted for registration?

The short answer to this is “no”. A Deputyship is only in place once the Court of Protection has made an Order appointing you, and an LPA can only be used once it has been registered by the OPG.

However, the ‘best interests’ framework mentioned above can be used for health and welfare decisions whilst a registered LPA or Deputyship is pending.

If a particular decision needs to be made urgently and cannot wait for the Deputyship or the registered LPA (as applicable), then there are some alternative options. This is complex, as the options vary depending on the circumstances of each case. It is extremely important to take specialist legal advice in those circumstances to protect you and your child or loved one.

How we can help

Renaissance Legal is part of the Renaissance group of companies alongside Renaissance Trust and Renaissance Financial. Together, the group offer legal services, financial services, Inheritance Tax planning, welfare benefits advice and Trusts administration.

Our expert team can assist you with all aspects of planning for the future, including Wills, Letter of Wishes, Trusts, Powers of Attorney, Estate Administration and Court of Protection work. They can also act as an Attorney or Deputy if required.

We will discuss your circumstances and put in place the necessary legal documents which are in the best interests of your family. To discuss this further please call us on 01273 610611 or email info@renaissancelegal.co.uk

This article was first published in the Autumn 2024 edition of the TSA Magazine.