Losing or not having the ability to make your own decisions can be because of a variety of reasons, it might be because of the onset of an illness or condition, such as Dementia, or an accident. It may also be the case that your disabled and vulnerable child is over the age of 18 and they do not have the mental capacity to make their own decision.
The ability to make your own decisions is referred to as mental capacity and this is governed by the Mental Capacity Act.
There is no legal right for a close family member to make decisions on behalf of the person who is losing or who does not have mental capacity, not even a spouse or civil partner. Many people, if they have the mental capacity to do so, choose to put in place a Lasting Power of Attorney.
Lasting Power of Attorney
A Lasting Power of Attorney can be likened to an insurance policy – it ensures you have the right plans in place if you become unable to make your own decisions. A Lasting Power of Attorney is a legal document in which you give authority to another person (known as an ‘attorney’) to make certain decisions on your behalf if you become incapable of making your own decisions. Read more.
You are only able to put in place a Lasting Power of Attorney when you have mental capacity; you would not be able to put this in place after mental capacity has been lost.
It’s usual that family will be consulted when a person has lost the mental capacity to make their own decisions, usually where medical treatment is being considered, but this doesn’t always happen and their views and opinions do not have to be taken into account. If you have a family member who lacks mental capacity and has not put in place a Lasting Power of Attorney, then you may need to apply to the Court of Protection to be able to manage their financial affairs or make decisions about their health and welfare.
Court of Protection
Via the Court of Protection people can apply to be formally appointed to make decisions for a person lacking mental capacity. This person is called a Deputy and is often a close relative or friend. In the case of a disabled child, it would typically be the child’s parent. Read more
The legal position regarding decision making changes once a person becomes an adult (18 years old) and it is important to understand how a disabled or vulnerable person may be affected by this.
Parental Responsibility
Until a child reaches the age of 18, their parents (in most cases) will have Parental Responsibility (PR) for their child. PR means ‘all the legal rights, duties, powers, responsibilities and authority a parent has for a child and the child’s property’. Therefore, as a parent, you have the right to make decisions about your child’s care and upbringing. If both parents have PR then they must agree on any important decisions that they make regarding their child. Important decisions include deciding, for example, where your child lives, whether or not they receive particular medical treatment, how and where they are educated etc.
Once a child reaches the age of 18 then parents lose PR and no longer have any legal responsibilities or automatic rights to make decisions about their child. For parents or carers of a child with a disability or vulnerability, they are often surprised to find out that this is the case and that their role as a decision-maker changes considerably. Frequently, families are advised by health and social care professionals that they need to apply to become a Personal Welfare Deputy for their adult child as they do not have the capacity to make their own decisions. However, in many cases, a Personal Welfare Deputy Order is not necessary, click here to read more about this in our blog.
Our specialist team are highly experienced in setting up Lasting Powers of Attorney and applications to the Court of Protection, for Property and Affairs and for Personal Welfare. Please contact us to discuss your own personal situation.
