Capacity, Best Interests & Deputyship

‘Capacity’ or ‘mental capacity’ is important for decision-making. A person’s mental capacity can remain consistent, fluctuate or deteriorate. They may have the capacity to make some decisions and not others. When we talk about capacity in this context it is about assessing mental capacity to make choices and not about preventing young adults from making choices that we as parents do not feel are wise.

Assumed capacity at 18 years of age

When a child turns 18, there is an ‘assumption of capacity’. This means that they are assumed able to make decisions for themselves. Your Local Authority and other service providers are required to talk directly to your adult child, rather than making decisions directly with yourself as parent or guardian. This step towards independence can be a worrying time for families, especially if experiences with social care, health or education have been frustrating in the past.

 It may be that that there are areas in which your child lacks the capacity to make informed choices. In such cases decisions must be based on a consideration of what is in their ‘best interests’.

What is ‘best interests’?

The Mental Capacity Act (MCA) and the supplemental Code of Practice governs the process for making a decision where a person lacks the mental capacity to make it for themselves.  The main principle is that any decision required at that time is to be based on what is in the ‘best interests’ of the person lacking capacity. When determining what is in a person’s best interests it is important to encourage the person to participate in discussions. As their parent or guardian, you should also be involved in discussions defining what is in their ‘best interest’ with professionals, including those from local authorities and the NHS.

Sometimes there are disputes in the decision-making process and attempts should be made to resolve this. You can request the Court awards you a legal right to act on behalf of your adult child, if this is in their best interests. A formal assessment of their capacity would be required as part of this application.

Personal Welfare Deputy Order, also known as Deputyship

You can make an application to The Court of Protection (COP) for Deputyship in specific areas, however these are not always granted. Without this deputyship status decision-making falls first to the young adult and then to the Local Authority but as the parent/ guardian you should still be included in ‘best interest’ discussions.

In contrast, being granted deputyship means that you can make certain decisions on your adult child’s behalf, without involving the local authority in ‘best interests’ decision-making. Depending on the decision of the Judge, this may involve decisions such as where they go to college, where they live and who cares for them.

Assessing capacity

The assessment decision regarding capacity is not made by the Local Authority. In order to apply to the Court of Protection for deputyship, you will need to arrange for a COP3 form to be completed by an appropriate professional. This could include (but is not limited to) a GP, Psychiatrist, Social Worker, Psychologist. The process can take time and you may want to consider gathering your evidence 12-24 months ahead of your child turning 18.

Power of Attorney (POA)

This is different to deputyship because it can only be granted in situations where the young person has the mental capacity to make a fully informed decision about the power they are handing over at the time of the decision. If they do not have this capacity, they cannot by default consent to hand over Power of Attorney to you. This legal status can be limited to certain areas of life, for example care needs.

Sometimes we need more help than we can give ourselves.

A specialist solicitor with experience of SEND issues and of handling applications for Deputyship may be very helpful.

 Although we cannot provide legal advice, Same but Different’s team of RAREnavigators can provide practical help and attend Multi-disciplinary team meetings with you. We can also liaise on your behalf.