Making decisions


Find Out What Is Out There And Have A Greater Understanding Of The Law


As a parent you have certain rights and responsibilities in relation to your child. These rights and responsibilities are defined in law and called parental responsibility.

Parental responsibility ends when a young person reaches the age of 18, but can end earlier in specific circumstances, including if the child is adopted or a young person between 16 and 18 gets married.

All mothers and most fathers have these legal rights and responsibilities automatically. Other carers can gain or apply for parental responsibility. Having parental responsibility means having a key role in the way you bring up your child, making decisions and acting in their best interest. This includes making decisions on where your child lives, their education and consenting to medical treatment.

You can read more about parental responsibility at
www.gov.uk/parental-rights-responsibilities

Involving your child in decisions

Even before the age of 18, you and any professionals working with your child, including education, health and social care teams, will usually already be supporting their involvement in decisions about their life and plans for the future. 

Read more about:

Capacity to make decisions

Under the Mental Capacity Act in England and Wales, young people aged 16 and over are presumed to have mental capacity to make decisions for themselves.

The Mental Capacity Act introduces five key principles:

  1. A person must be assumed to have capacity unless it is established that they lack capacity.
  2. A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.
  3. A person is not to be treated as unable to make a decision merely because he makes an unwise decision.
  4. An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.
  5. Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person's rights and freedom of action.

If your son or daughter has been assessed as not having capacity to make decisions for themselves, there may be legal steps you can take to make decisions on their behalf.

Deputyship and power of attorney

​Power of attorney is when a person gives their consent to someone else to make decisions on their behalf, for example if they get ill or have an accident.

When a person has always lacked mental capacity, a person wishing to manage their affairs can apply to the Court of Protection to be appointed as their deputy. This is known as applying for deputyship.

It is important to note that the Court of Protection is likely to refuse permission if the benefit to the person who lacks mental capacity could be achieved in some other way.

The Mental Capacity Act 2005 Code of Practice states that deputies for personal welfare decisions will only be required in the most difficult cases where:​

  • Important and necessary actions cannot be carried out without the court's authority; or​
  • There is no other way of settling the matter in the best interests of the person who lacks capacity to make particular welfare decisions.​​

The Court of Protection will also hear cases for children aged 16 to 17 where any of the following applies:

  • The local authority is involved.
  • There is a dispute.
  • It is a decision that legally does not fall under parental responsibility.

If a personal welfare decision is not controversial and no one opposes it, it may be possible to make the decision on behalf of the person who lacks the mental capacity to make it themselves without referring to the Court of Protection. ​

See more about deputyship gov.uk website.

Related information

• Mencap's Mental Capacity Act resource pack - for family carers of people with a learning disability'.

Special educational needs and disability  (SEND) code of practice. See from paragraph 1.3 - 'participating in decision making'. See also Annexe 1 of the code (Mental Capacity). ​  ​

• ' Thinking ahead' from the Foundation for People with Learning Disabilities.​

Read Carers UK's Care Act FAQ.