Thursday 13 April 2017

DISABLED/VULNERABLE CHILDREN v MENTAL CAPACITY ACT ?

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