I need to make a decision on behalf of my son - Mencap

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I need to make a decision on behalf of my son

Birch94 profile image

My son does not have the capacity / ability to make decisions of his own regarding his health and his wellbeing as well as his finances.

Where do I stand legally with this and what do I need to do so that I can legally act on his behalf?

Thank you in advance

Katie

24 Replies

Hi Katie

I'm presuming that your son is an adult? If so then you will need to apply to Court of Protection for you to be awarded Power of Attorney. There are 2 types, 1 for Health and Welfare and the other for Finances and Property. I think you will need to apply for both separately? It does cost, not sure how much.

I'm certainly no expert on this matter so

I would advise looking on the .GOV website and also seeking advice from CAB (citizens advice bureau) or a solicitor (can sometimes get a 30 min free consultation?)

Hope this helps

Paul

Birch94 profile image
Birch94 in reply to Mazzamataz

Hi,

Thank you for your help this is really useful.

I have a friend in a similar situation. Her son is 16, he has capacity but due to his anxiety and autism he can not deal with being in a meeting where the atmosphere is rather formal. She is finding it hard to get the health care professionals to talk to her about her sons medication as they are refusing to speak to her without him being there.

Where does this leave her legally? He wouldn't be able to do a power of attorney as capacity maybe an issue.

Mazzamataz profile image
Mazzamataz in reply to Birch94

Hi

No problem.

As for your friend I'm a little confused, some people say it doesnt take much?!

But at 16 he is still legally a minor, isnt he? So parent/s are official guardians? Or am I missing something?

I'm talking in respect of England and Wales, elsewhere might be different.

Even then, as you say he has capacity then he can consent for her to represent him if that is what he wants?

I would like to add, I have only ever worked in Adult Social Care, but my reply is partly based on being a parent myself too.

Thanks

Paul

Birch94 profile image
Birch94 in reply to Mazzamataz

Hi,

Again thank you for your reply.

This is what confused me as he is still classed as a minor but as he is reaching the age of 18 she is finding it difficult to be able to act on his behalf if you like. He was only diagnosed at 15 years old and she is really struggling.

He refuses to go into any meetings to discuss his medication and will not speak or communicate with the social workers, therefore mother is in a situation where they are refusing to speak to her without him being present.

Katie x

Head_cook profile image
Head_cook in reply to Birch94

I was going to do the same but Irwin Mitchell’s said any solicitor worth his salt wouldn’t take your money ( expensive) as The Mental Health Act took its place to protect us

(mind.org.uk/information-sup...)

You can be his appointee for benefits and set up a bank account where your name is on the account too.

You can also set up a Discretionary Trust Fund for the day you are not around.

Gracey1961 profile image
Gracey1961 in reply to Head_cook

Hi can you tell how to go about setting Discretionary Trust Fund

Thanks

Head_cook profile image
Head_cook in reply to Gracey1961

Hi Gracey

Well I know of 2 solicitors and that’s Irwin Mitchell

irwinmitchell.com/personal/...

Mencap Trust Company Ltd Brochure.pdf

Mencap have a list to choose from,

I would ask what their charges are as they may differ & you usually get the first 30-60 mins free

Hope this helps

PS don’t go to jo bloggs round the corner who will say I can do it for half the price, it’s a specialised solicitors you need. To make sure all the i’s are dotted and t’s crossed, or your loved one can lose out

eg: benefits entitlement

Gracey1961 profile image
Gracey1961 in reply to Head_cook

Many thanks thats helpful

BenjiB profile image
BenjiB in reply to Mazzamataz

If under 18 you can make decisions for him. If over 18 you should still be involved. My son is 21 and doesn’t have capacity and I’m still asked for permission for health matters. He lives at college term time. When he had dental surgery last year I had a best interest meeting with the dentist and signed all the paperwork.

If you want to go the legal route you need to apply to the court of protection for deputyship, it’s similar to power of attorney but for people that don’t have capacity. Power of attorney is very different.

Go to the doctor and school and get their opinions and then see the Jobcentre about being appointee - is the way I went

Head_cook profile image
Head_cook in reply to

Yes you get a home visit from benefits office to sign the paperwork to become an appointee.

BenjiB profile image
BenjiB in reply to

That’s for benefits not health and welfare.

Hi Birch94. I also have a 19 year old son who can't make his own decisions. At the moment I have a status of that I can sign and apply for benefits in his name but when he turns 20 years old which is next month I have to get a power of attorney'to cover his financial matters and also his health and wellbeing I think that is a deputy which the court of protection provides it is a lot of money to do this but if you are receiving any state benefits you can get the fees cancelled out

With out something in place the authorities could over rule your decisions you make on their behalf which includes Health and other rights that the person would have if they could make their own decisions. I am going to apply for a deputy for him when I can. I hope that you find this useful. Take care. Peter

Hi Peter,

This is really useful thank you for your help.

So just to confirm you are going to go down the Court of Protection route and note POA. My understanding is that if the individual has no capacity then you cant do LPA's.

Also did you mention if my son receives state benefits there will be no cost for court of protection?

Thank you for taking your time to answer my question.

Katie

Good morning Katie

In reply to your message about Lpas. You can no longer get these at all and to be honest they weren't Suitable for people who couldn't make there own decisions. That's why there are two elements to the Power of attorney's one for Health care and wellbeing and the other for financial matters and property of the person who is going to be subjected to the power of attorney issued by the court of protection. My son is going to be 20 in March so I am rushing around getting things set up so there's no problems later on. In regard to the financial side of things if you get a deputyship on the power of attorney you have to put any benefits and Money they have into a bank account in there name and any withdraws from the account of the person who you are a deputy You have provide details of were the money has gone and you have to keep any receipts for the money spent on there behalf and at present that is standing at 5 years. I can understand why the court of protection has done this and it's to protect the person's money and property that they might have. To save the person being abused by anyone who is been made a deputy or anyone else really (I.e.) being used for there own ends. Most people wouldn't abuse a person who has learning difficulties but some might. Sorry to have gone on a bit about this. I wish you every success in getting the protection that your young one needs to live there life to the fullest it can be taking into account of there limited capabilities . Take care of yourselves. Peter

Hello. You’ll need to apply for Deputyship, similar to POA but for people without mental capacity . You can download the forms online. There are two parts, health and finance. It’s not easy to get but a recent court ruling hopefully will make it easier.

penningtonslaw.com/news-pub...

Hi Katie,

If your son is able to say who he would like to represent him in decisions regarding his finances & welfare he could make a Lasting Power of Attorney. If he is not able to do this then an application to the Court of Protection for Deputyship would be required. I agree with Paul's advice re consulting with CAB & the .Gov website. The Office of the Public Guardian have a really useful booklet to explain the Mental Capacity Act & deferred decision-making : static.carers.org/files/the...

All the best

Niki

Hi if you need any support, we have our Mencap helpline on 0808 808 1111. They will offer you information and advice on where to get the best help as possible.

Hi Katy,

I am a mum of special needs son aged 34. I have had similar issues.

I suggest finding a good local solicitor and asking them to meet you and your son and fill in the paperwork for getting POA for Health & Welfare and Finances & Affairs asap.

It will cost a bit of money but it is very important.

When I tell Doctors I have POA, they take it on board 100% and have made a record of this on my son's records.

Best of luck.

Hi Birch94

I have COP Deputy for both finance and health for my daughter who lacks capacity.

I share the Deputyship with my older daughter and my younger daughters life long friend who is also a carer to her.

I did have a solicitor to do the paperwork for me, you can do it yourself but it can be quite tricky. There are some court costs but the general yearly running cost is reduced to a minimum if the person is on benefits.

It's no problem, the COP just require you to fill in a questionnaire every year and account for some monetary transactions.

The Health and Welfare part is extremely valuable to have, specially when it involves lack of capacity.

They are extremely nice helpful people who will visit to help with any problems you may encounter. I've got my first visit coming up for the health part in march.

The way I see it is that we've got the court of protection looking out for my daughter, and at my age 76 that's a real comfort.

Actually unfortunatelybits a little more complicated than power of attorney, I'm aware as I'm in the same position with my adult brother who has been in care all his life.

Power of attorney is when the individual has capacity so they can appoint you to manage affairs .

Where there is no capacity its called deputyship one for finance and another for health and welfare all applied for through the court of protection.

There are responsibilities with deputyship but of course as his parent you hold that anyway .

Very important to get this in place, not only for finances but particularly for health , as we have discovered being next of kin does not always give you the right to be a voice for him .

Others, social workers, doctors can over rule

Also it's quite costly to apply particularly as health is not often given out !

Hope that helps and all goes well

As I understand it when anyone becomes of age ie 18 and you want to oversee their affairs then this is where The Mental Health Act kicks in. You can not assume to take charge as the adult in question needs a capacity assessment, there’s various degrees of capacity. From being able to blink for a yes to a mild LD . This is why the Act came into force to help the adult make choices. It is supposed to guard them against abuse. I was told by a lawyer that if you pay hundreds of pounds to a solicitor for this then they are not worth their salt as The Act can be disputed in a court of law to protect the adult. But apply to oversee his health etc.. I’m not a legal advisor just passing on what I’ve been told,

mencap.org.uk/sites/default...

Would I be able to get Power of Attorney for my son if I broke the DOL for him and the supervised contact of me? He is between social workers and advocates at the moment. I have concerns that we may soon not be able to meet at all. After so many years it is still my ambition to be his main carer and have him back home from the care home where he would have better emotional and cognitive fulfilment. I am fearful of challenging authority after so many years of lost hearings and negative reports and dressings down. I had a parent who was a magistrate and I once worked as a legal secretary. Ultimately I am afraid of the consequences of potentially being jailed or sent to a care home myself, even though I was quite highly trained in learning disabilities and cognitive psychology as a student.

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