Parental responsibility & mental capacity beyond 16 8 mins read This advice applies across the UK unless stated otherwise. As your child gets older, you might have to decide whether they’re able to make decisions for themselves. If not, there may be legal steps you can take to make decisions on their behalf. In this article Parental responsibility up to 18 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. Having parental responsibility means having a key role in the way you bring up your child. It can mean making decisions for them and acting in their best interest. This includes decisions on where your child lives, their education and consenting to medical treatment. All mothers and most fathers have parental responsibility automatically. Other carers can gain or apply for parental responsibility. Parental responsibility ends when a young person reaches the age of 18. But it can end earlier in specific circumstances, including if the child is adopted or a young person between 16 and 18 gets married. You can read more about parental responsibility atwww.gov.uk/parental-rights-responsibilities Involving your child in decisions Even before 18, you will be involving your child in decisions about their life and plans for the future. The Mental Capacity Act in England and Wales (see below), the Mental Capacity Act (NI) in Northern Ireland, and the Adults with Incapacity Act in Scotland all presume that young people aged 16 and over have mental capacity to make decisions for themselves Until they are 18, this is alongside the parental responsibility you have for them. You and any professionals working with them, including education, health and social care teams, should be supporting their involvement. Mental Capacity Act’s five principles (England and Wales) The Mental Capacity Act introduces five key principles around supporting people who may lack mental capacity to make their own decisions: A person must be assumed to have capacity unless it is established that they lack capacity. 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. A person is not to be treated as unable to make a decision merely because he makes an unwise decision. 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. 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. The first three principles relate to assessing whether someone has mental capacity. The last two principles are to do with making decisions on behalf of someone who lacks mental capacity. When an adult lacks mental capacity Some adults lack the mental capacity to make decisions for themselves. This might be because of a brain injury, learning disability or diseases such as dementia. If your child lacks mental capacity, there may be legal steps you can take to make decisions on their behalf. Assessing mental capacity The tests used to determine mental capacity are different in each UK nation. In England, and Wales, alongside the principles above, practitioners use a two-stage test to work out whether a person lacks mental capacity. There is also a two-stage test in Scotland, and in Northern Ireland, pracitioners follow a court law test. Making decisions for someone who lacks mental capacity There are different ways of making decisions for someone who lacks mental capacity. Power of attorney Power of attorney is when a person gives their consent to someone else to make decisions on their behalf, for example in the event they get ill or have an accident. The person must have the mental capacity to give someone power of attorney to make decisions on their behalf. There are different types of power of attorney, including across each UK nation. These include lasting power of attorney in England and Wales; continuing and welfare powers of attorney in Scotland; and enduring power of attorney in Northern Ireland. Becoming an appointee An appointee is a role particular to the welfare benefits system. By acting as your child’s appointee, you’ll be able to manage on their behalf the benefits they receive from age 16. This includes Personal Independence Payment, Child Disability Payment, Adult Disability Payment and Universal Credit. Acting as your child’s appointee means that you’ll receive their benefits for them. You’ll be able to make claims on their behalf, and you’ll be responsible for keeping the relevant office informed of any change to your child’s circumstances. Read more about becoming a benefits appointee. Becoming a deputy (England and Wales) If your child has always lacked mental capacity, you can apply to the Court of Protection to become their deputy. Becoming your child’s deputy will allow you to make decisions on their behalf. Property and financial affairs deputies can manage someone’s bills and finances. Personal welfare deputies can make decisions about medical treatment, personal care or where you live. You can apply to be one type of deputy or both. However, the Mental Capacity Act Code of Practice states that the court will appoint personal welfare deputies only in the most difficult cases, where either: Important and necessary actions cannot be carried out without the court’s authority. There is no other way of settling the matter in the best interests of the person who lacks capacity to make particular welfare decisions. 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 mental capacity without referring to the Court of Protection. The Court of Protection will also hear cases for becoming a deputy for a child 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. The Court of Protection is likely to refuse a deputyship application if there is some other way to achieve the benefit to your child. See more about deputyship on the gov.uk website. Becoming a controller (Northern Ireland) In Northern Ireland, the High Court can appoint you to become your child’s controller. A controller can manage financial affairs on behalf of someone who lacks mental capacity. You can find out more about controllerships in the official Handbook for Controllers. Guardianship orders, intervention orders and access to funds (Scotland) A guardianship order allows you to make decisions on an ongoing basis for someone who lacks mental capacity, for example to do with healthcare or finances. You can apply for a guardianship order up to three months before your child’s 16th birthday. An intervention order grants decision-making rights on behalf of a person lacking mental capacity on a one-off basis. The access to funds scheme allows you to access your child’s finances, for example a Child Trust Fund. You might do this to pay day-to-day living costs. Read more about these options on the Office of the Public Guardian website. Accessing Child Trust Funds & Junior ISAs If you set up a Child Trust Fund or Junior ISA for your child, only they can access their savings when they turn 18. If they lack mental capacity to do so, you usually need to apply to the Court of Protection to become their deputy in England and Wales. In Scotland, you will need to make an application to the Office of the Public Guardian in Scotland. And in Northern Ireland, you’ll need to apply to the Office of Care and Protection to become a controller. Some providers do allow parents to access the savings via the benefits appointee system on a case-by-case basis. Talk to your provider to see what they can do. We are campaigning to expand the benefits appointee system so that it covers all Child Trust Funds and Junior ISAs up to £5,000. Helpful resources Mencap’s Mental Capacity Act resource pack – for family carers of people with a learning disability’. The Ministry of Justice’s Making financial decisions for young people who lack capacity: A toolkit for parents and carers. 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). Together Matters produce Thinking Ahead: a guide to support families in talking about, and planning for, the future as well as guides for young people.. Read Carers UK’s Care Act FAQ. Related information Wills & trusts Writing a will and including a trust can help give some reassurance that the person you care for is provided for when… Read more Child Trust Fund campaign 80,000 disabled young people in England & Wales risk losing £210 million, as a difficult and costly process means many are unable… Read more Benefits & money You might be starting to think about your son or daughter's financial independence and how they'll start to manage their own money. 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Mental Capacity Act’s five principles (England and Wales) The Mental Capacity Act introduces five key principles around supporting people who may lack mental capacity to make their own decisions: A person must be assumed to have capacity unless it is established that they lack capacity. 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. A person is not to be treated as unable to make a decision merely because he makes an unwise decision. 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. 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. The first three principles relate to assessing whether someone has mental capacity. The last two principles are to do with making decisions on behalf of someone who lacks mental capacity.
Mental Capacity Act’s five principles (England and Wales) The Mental Capacity Act introduces five key principles around supporting people who may lack mental capacity to make their own decisions: A person must be assumed to have capacity unless it is established that they lack capacity. 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. A person is not to be treated as unable to make a decision merely because he makes an unwise decision. 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. 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. The first three principles relate to assessing whether someone has mental capacity. The last two principles are to do with making decisions on behalf of someone who lacks mental capacity.
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