Vulnerable children and their transition to Adulthood
It will come as a surprise to some parents and carers to
discover that they do not have the automatic right to make decisions for their
older teenagers and adult children with Special Educational Needs. The Mental
Capacity Act (2005) is designed to protect and empower individuals who may lack
the mental capacity to make their own decisions about their care and treatment. When a person turns 16, the starting point is to assume they have
capacity to make decisions for themselves (even though they are still legally a
child until 18). The law says a person must be given relevant information in an
appropriate format and time to understand it before a decision on their
capacity is made. So whilst you are
considering the whole question of post-school options, you will also need to
think about how much actual input you are legally given.
There are two key points to consider. The first
is how to remain in control and second
is what arrangements you can put in place to manage the finances. The following is a quick guide to the options
available to you.
Managing Affairs
Lasting Powers of Attorney (“LPA”) and Deputy
Orders are legal appointments of a person or persons to deal with the affairs
of a person who lacks mental capacity. These appointments can be made to retain
the power to make decisions about the person’s financial matters or their
health and welfare. They key difference
is for an LPA, the child/dependent must give his or her consent for you to act
on their behalf which can be difficult.
Therefore the option then has to be to obtain a Deputy Order via the
Court of Protection. An application of this sort can take time and the outcome
uncertain. You will need to work in conjunction with the social care department
for the council involved with your child to ensure the best result
The Finances
A Trust can be set up into which money can be deposited for
the benefit of the child but with the control remaining with the Trustees (be
it parents, relatives, guardians). There
are a number of decisions which will need to be made here to include the type
of trust and its purpose. It will be
necessary to distinguish between those difficulties that a young person
experiences from birth and those that happen as a result of an accident. So for the first category you would need a
Disabled Trust and the second might require a Personal Injury Trust.
To qualify for a Disabled Trust the beneficiary must
be a disabled person. For this purpose a disabled person is one who within the meaning
of the Mental Health Act 1983 is incapable of managing his affairs, or qualifies
under a 'benefits test'. ‘Mental
disorders’ such as bipolar disorder, schizophrenia, autistic spectrum disorder,
learning disability (such as Downs syndrome) are also conditions which enable a
person to qualify as disabled, if, as a result of having the condition, they
are incapable of managing their affairs.
A parent or guardian can place their own money into this type of Trust.
For a Personal Injury trust to be relevant the
child needs to have received compensation as a result of an accident and it is
only that money which can be put into the trust.
For both types of Trust tax and DWP benefits need to be
considered. There is then the question of who can benefit from the trust post
death or should it then be wound up. Whichever Trust is chosen it will need to be registered with the revenue
and annual income and capital growth accounted for.
The above is an overview
only. For a free appointment and to find
out answers to the questions that need answering and to get the care you or a loved one need
email Andrew Douglas or his team on ajd@awdrys.co.uk or
call on 0800 072 8636.
We have offices In Marlborough, Royal Wootton Basset,
Devizes & Chippenham. Alternatively visit our website www.abdcare.co.uk
