Adult with learning disability - legal guardianship - Mencap


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Adult with learning disability - legal guardianship

Reenie21 profile image

Hi there. I'm trying to get some advice on how to go about officially making my brother a legal dependent as our parents are both deceased and he is now in mine and my eldest brother's care. I had tried family rights organisation but they only deal with cases for child guardianship up to 18 years old. My brother is 34 years old. Any help would be highly appreciated. Many thanks!

12 Replies

Hello Reenie21

Welcome. Your brother is fortunate to have you and your eldest brother supporting him with this.

As I understand it, legal guardianship only applies to children under 18. Instead you will probably need to look into mental capacity. Here is some information on the Mencap website that might be a good starting point -

There have also been a lot of other posts on here about this -

You may also want to look into wills and trusts - Mencap have a team who can help you with this -

Many families face these sort of decisions, you are not alone. However, you will probably need to talk to someone who is an expert to make sure you get advice that suits you all best. Our helpline can also help you find the right support -

Best wishes


Thank you so much, Sarah. This is incredibly helpful. Appreciate the prompt and detailed response! :)

Hi Reenie21 - you're not alone in asking this question. Many siblings of people with LD look into this sort of thing after their parents have passed away. As well as Sarah's advice, do have a look at the guides from Sibs that help adult siblings through this process (the charity for brothers and sisters of disabled children and adults):

Message if you need anything and do let us know how you get on. Fx

Thank you so much. I'd written in to Mencap and Sibs last week but no response as yet.

Will certainly keep you posted. Really appreciate the care and assistance :)

Charlie2750 profile image
Charlie2750Community friend

Hello Reenie21

I just thought I might add my twopenneth for what it is worth.If you are the next of kin then any decisions about money and health will come from you and the Statutory bodies will/should take your decisions as final.However there may be problems if you go against the grain with health matters.I have always trusted what the doctors have said but having been a nurse I had the knowledge to ask all or mostly all the right questions.My son is 32 and has been to outpatients for some invasive tests endoscopy etc but I was always there with him.I will cut to the chase and suggest that you may want to look at the Court of Protection to become a Deputy.You become a deputy and can take decisions on finances and also health and welfare .If you have watched the TV and seen that someone has been to court to overturn a doctors decision to stop treatment they would have first applied to the Court of Protection so that they may make the decisions but it(the decisions) has to be in the persons best interest.With regards to money and benefits you can be an "Appointee " appointed by benefits office but if there is a lot of money the Court of Protection may be the way to go but money will need to be spent.£400 for each application but go to the Gov.UK website and see if this is right. When filling out the forms that you download you will get your brother's GP to fill out a form/letter to report that your brother is incapable of looking after his money because of his learning disability.This is about having mental capacity.If your brother could understand then it would be called Enduring Power of Attorney and he would need to sign the documents. Good luck

Hi Reenie21

As pointed out above, the first thing to do is determine if your brother has mental capacity as defined by the Mental Capacity Act 2005. If you think he lacks capacity, you can go down the Deputy route but you will have to have his lack of capacity certified by a professional such as his GP or a care worker.

The criteria for lack of capacity are quite strict, in that if your brother can make any sort of decision for himself, even if you don't think its a good decision, then he probably won't be assessed as lacking in capacity.

If you do go down the Deputy route, its possible to apply yourself online but it is quite complicated. I've done it twice now, once some years ago when Jack was approaching adulthood and his mum became his Deputy, then again several years later when she sadly passed away and I became his Deputy.

If your brother does not lack mental capacity then maybe you could go down the Power of Attorney route. I don't have any experience of this route for a younger person, only for older ones, but it does involve a 'trusted friend' (i.e. not you or anyone related) explaining to your brother what he is signing up to and satisfying themselves that your brother really understands what he is signing. Again you can do this online, possible but not simple!

Good luck!

Jack's Dad

Reenie21 profile image
Reenie21 in reply to JacksDad

Hi Jack's Dad! Thank you for this insight. The reason I'm actually looking into something like this is not so much to make decisions for him (although yes, there would be some he is not really able to make himself). This is more a mobility question because of the fact that my job is quite international and I often have opportunities abroad. Some countries where visas would be an issue would require him to be a dependent of mine in order for him to come with me and be in the same country. This is mainly the reason I was trying to get information.


Hope you managed to get it sorted as I am sure your brother would love to travel abroad with you!

Best wishes

Jack's Dad

Thank you so much. Yes, he was with me in Hong Kong and we had a ball but it was easier there visa wise.

Many thanks for your wishes and keep well☺

You need to contact the office of public guardians get it that way or power of attorney for financinal and welfare and personal you need both . Youl have to pay for this if or go to a Soliciter who deals with this itl be under Mental capacity act . They have web page also and helpline number .

We have a power of attorney for my sister with Down’s syndrome a solicitor helped with this. We found a local solicitor who has understanding of LD as she has mental capacity it was quite easy to do

Hi Reenie21 i came across your post...we are in a similar situation. Did you get anywhere with it all? Thanks

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