4 August 2022 by Hadley Long

Supporting children with additional needs into adulthood

The tragic case of Archie Battersbee has brought into sharp focus, once again, how best interest decisions are made for those who do not have mental capacity.

Archie, who is 12 years old, was found unconscious at home in Southend, Essex on 7th April this year.  Doctors treating him believe he is brain stem dead and have consistently argued it is in his best interest for life support to end.  His parents disagree and argue that he should be given more time to see whether he can recover.

Fortunately, most parents are not faced with such heart-breaking situations as this.  However, all parents are required to make best interest decisions for their children on a day-to-day basis, until their child reaches adulthood at 18.  At 18, a person is generally entitled to take their own decisions, as they have reached adulthood.  But what about (adult) children with special needs and learning difficulties?  How can parents support children with additional needs, moving from childhood to adulthood?

Making decisions on behalf of children

Moving from childhood to adulthood is a difficult time for most young people and can be even harder for those with additional needs.   Parents will want to support their children as much as they can but frequently find that others make this difficult, particularly once a child has reached the age of 16.

What is the legal position? Parents must make all decisions for children aged 15 or under, as the law assumes they cannot make decisions for themselves.

Young people aged 16 and 17 are assumed to be able to make decisions for themselves and, as a child gets older, they should be encouraged to play a greater role in the decision-making process.  If a young person aged 16 or 17 lacks mental capacity to make a particular decision, parents may do so on their behalf but only if the decision falls within the scope of parental responsibility.

A young person becomes an adult on his or her 18th birthday.  From this day onwards, parents no longer have any legal authority to make a decision for their (adult) child unless they lack mental capacity and the parent is providing day-to-day care or treatment.

This can be a time when parents find it difficult to support their (adult) child as they have, in the past.  Financial institutions, who may have been prepared to deal with parents whilst the child was under 18, may no longer be prepared to do so.  Doctors and other healthcare professionals may be reluctant to share information with parents about the (adult) child’s treatment or health requirements because to do so would be a breach of their duty of confidentiality.

So, what can parents do to ensure that they are able to continue to support their (adult) child in the future?

Lasting Powers of Attorney and Deputyship Applications

If the (adult) child has sufficient mental capacity, he or she could make lasting powers of attorney for property and finance and health and welfare, appointing parents as their attorneys.  This would allow their parents to take decisions on their behalf, if they were unable to do so or just wanted support.

However, the (adult) child must have sufficient mental capacity to make the lasting power of attorney and so this will not be an option for all children with additional needs.  If the (adult) child’s understanding is too limited, a power of attorney will not help.  In this situation, parents can consider applying to the Court of Protection to be appointed as their (adult) child’s deputy.

Although the Court is happy to appoint property and financial affairs deputies, health and welfare deputies are appointed only in very unusual circumstances.  This means that many parents will have no legal standing to make health and welfare decisions for their (adult) children with additional needs, something which many parents find hard to comprehend.

If your (adult) child is considering making a lasting power of attorney or you are considering making a deputyship application for them, it is always sensible to seek legal advice from a specialist solicitor so that all the options are fully explained to you, and you chose the option that is right for you and your family.

If you have any queries about lasting powers of attorney or applications to the Court of Protection, please contact one of the experts in our Wills and Wealth Planning team.

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