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Decision Making for Disabled Individuals and the Help Protect Our Vulnerable Children campaign

17.05.19

We speak to families every single day who have a disabled or vulnerable child and know, or have just found out that when their child reaches 18 they will no longer be able to make decisions on their behalf. Once a child reaches the age of 18 parents lose parental responsibility and therefore no longer have any automatic rights to make decisions on behalf of their child.  Parents of a disabled or vulnerable child are often surprised to discover that their role as a decision maker changes completely and this can often be a very worrying time.

An individual’s mental capacity to make decisions can be an extremely grey area as every person’s situation is unique and there is definitely not a ‘one size fit’s all’ approach. An extremely important principle of the Mental Capacity Act (MCA), which is ‘designed to protect and restore power to those vulnerable people who lack capacity’, is that we must always start with the presumption that a person has the capacity to make their own decisions; unless it can be shown that they lack the ability to do so. Another key principle of the MCA is that any decision must be made in the ‘best interest’ of the individual. For most situations and decisions that need to be made, following the MCA will enable decisions to be taken that arein the best interest of individual.  There should be no need to involve the Court and it is generally considered a last resort to apply to the Court.

Help Protect Our Vulnerable Children campaign

We were extremely interested to hear about the Help Protect Our Vulnerable Children campaign championed by Rosa Monckton, Simon Mottram & Caroline Hopton.This campaign is seeking to clarify the law on welfare deputyship and the decision making ability for parents in this exact situation. The campaign is raising money through the crowdjustice platform to challenge and change the law with regards to a parents ability to make decisions for their disabled or vulnerable child when they are over the age of 18. They would like to ‘raise sufficient funds to issue a case in the High Court, as a test case, with the explicit intention of getting a High Court judge to make a public judgement that will change the law in this area.’

The Court of Protection

A welfare deputyship can currently only be appointed by the Court of Protection. The Court of Protection is the part of the court system that helps safeguard the property, financial affairs and welfare of those who lack capacity to make decisions for themselves. The Court of Protection can make orders authoring a person to act on behalf of someone who lacks capacity. The person who acts is called ‘the Deputy’.

It is often only the case that when an issue arises, where the people involved in the life, e.g. parents/carers, medical professionals and care teams etc, of the disabled or vulnerable person aren’t in agreement as to what is in the ‘best interest’ of the individual, does the role of decision maker come into question and the Court of Protection would then need to be involved.

The Help Protect Our Vulnerable Children campaign argues that rather than only appointing a deputy as a last resort, the Court should ‘adopt a test that flows directly from the Act and generally assume that it is in the dependent person’s best interests to appoint a deputy from among his or her close family.’

As the campaign has highlighted there are some cases where it may not be in the best interest of a vulnerable adult to have a parent as a deputy. However the people championing this campaign believe that ‘the Court should take a more favourable stance towards those parents or guardians who have a proven track record of acting in the best interests of their child.’

We will continue to monitor this campaign closely and will be interested to hear the judgment which they hope will be announced soon.

For more information on the campaign please visit:

https://www.crowdjustice.com/case/3forall/

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