The assumption of the Mental Capacity Act 2005 is that at the age of 18 everyone has the full capacity to run their own affairs and can make their own decisions. In situations where this is not the case, parents are able to seek a Deputyship Order.
A Deputyship in the Court of Protection over both finance and health and welfare gives parents the same rights post-18 as they had (prior to the young person who does not have capacity) becoming 18 to manage their affairs. This is particularly important if a parent is going to be demanding in terms of the provision which they wish the young person to receive both currently and in the future.
The Court of Protection can only make decisions about young people who lack capacity to make decisions for themselves on an individual basis. It is necessary for a parent to formally prove that the young person cannot make decisions themselves.
It is important to note that officers in the Court of Protection do not routinely deal with developmental disability. The bulk of their work is previously able adults with assets who develop dementia and are no longer able to manage their own affairs.
What the Court of Protection is interested in, in fairly lay terms is, what is the young person’s level of functioning? What sort of decisions can they make? Everyone has a level of decision making capacity, even if it is a preference of vanilla over chocolate ice-cream or a red t-shirt rather than a yellow t-shirt. What is needed is a suitably qualified professional who the Court of Protection will recognise, to explain the child’s level of functioning in “lay” terms and sign and return the Court of Protection form “COP3”.
In the course of an application to the Court of Protection, Social Services must be notified of the application and may choose to become Respondents to it. This is rare, but it does seem to happen where there are parental disagreements with Social Services.
Social Services can oppose the parental application. Deputyship is particularly important, because Adult Social Services have been known to refuse to deal with parents who are demanding, whether in terms of an expensive placement, or simply in terms of dealing with a residential setting, where parents do not feel that the standards match those of their own home. The process of applying for a Deputyship takes some months to work through the Court of Protection. An early application when the young person is rising-18 is therefore advisable, before problems with Adult Social Care can arise.
It is sometimes mistakenly suggested, that a Lasting Power of Attorney is an alternative. In order to grant a Lasting Power of Attorney a young person (18 or over) must have full understanding. Without full understanding of what is being granted, a Lasting Power of Attorney cannot be made. Lasting Powers of Attorney were created for the able elderly, who fear, that with advancing age they may not always be able to run their own affairs.