Planning your Child’s Future: Transitioning from Child to Adult

21 September 2021

Kelly Knight, Associate Legal Director of Hyphen Law talks us through what to consider when planning for your child’s future.

Planning your Child’s Future: Transitioning from Child to Adult

21 September 2021

Kelly Knight, Associate Legal Director of Hyphen Law talks us through what to consider when planning for your child’s future.

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Planning your Child’s Future: Transitioning from Child to Adult

The days are long, but the years are short. Words that I never truly understood until my daughter arrived. They will always be our children, but in a flash, they become teenagers and then young adults.

We can never start planning for our children’s future and their transition from child to young adult too early. As babies and toddlers, we can predict their needs, pre-empt their troubles, and cuddle them when they are sad. But as they grow older, some of those needs are not so predictable, and it can be more about helping them find the right path and giving them all the resources they need to help them along that journey.

The transition into adulthood actually starts much earlier than many of us believe – or like to admit! We all think of adults as being those aged over 18, and yes, that does signify adulthood, but those aged 16 and 17 years, are recognised as young people in their own right.

The legal bit

The Mental Capacity Act 2005 (MCA) applies to all those aged 16 years and over who live in England and Wales and who lack the capacity to make all or some decisions for themselves.

Under the MCA and the associated Code of Practice, a child is a person under the age of 16, a young person is a person aged 16 or 17 and an adult is over 18.

However, there are two parts of the MCA that apply to those under the age of 16:

  1. If a child lacks the capacity to make decisions about their property or finances, or they are likely to lack that capacity when they reach the age of 18, the Court of Protection can make decisions for them or appoint a Deputy to do so.
  2. The criminal offence of ill-treatment or wilful neglect of a person who lacks capacity applies to children under 16 as there is no lower age limit specified.

So, who can make decisions for children, young people and adults?

According to the Children Act 1989, Parental Responsibility:

  • Continues until a child is 18 (the Act still refers to those under the age of 18 as a child)
  • Refers to the ‘rights, duties, powers, responsibility and authority by law a parent has in relation to a child’

There is no specific point of reference that defines what decisions fall in or out of the definition. But Section 36.10 of the Mental Health Act Code of Practice provides us with some guidance that should be taken into account when assessing whether they do. They are:

  • Is the decision within the usual decisions that a parent would expect to make?
  • If not, the following best interests decision-making principles are:
      • Are there any indications that the person with Parental Responsibility might not act in the young person’s best interests?
      • Is the young person resisting?
      • What is the nature/invasiveness of what’s being proposed?

For those aged 16 and 17, there is a significant overlap between the Children Act and the MCA, which applies to those under the age of 18.

Children aged 16 and 17 years who are able to make their own decisions and communicate them effectively, should be allowed to do so. Their parents’ involvement in decision making will start to reduce during this transitional period and up until they reach the magical age of 18. It doesn’t mean that a child will always make the right decisions, but the law says that they should be able to make those decisions, if they have the capacity to do so.

So what does all that mean?

It means that there is a strict set of guidelines designed to support those aged over 16 who lack the capacity to make their own decisions.

As parents, we may want to have as much involvement as possible in any decision-making process which involves our children. But the law recognises that at 16, they are their own person, and there is a structure within which we should work.

It is important to remember the following 5 key principles:

  1. When supporting someone over the age of 16, you must adhere to the MCA.
  2. Always start with the presumption that a person has capacity.
  3. All practicable support must be given to your child to help them to make their own decisions.
  4. Remember – your child has the right to make unwise decisions.
  5. All decisions made on a person’s behalf (that they are unable to make for themselves) must be decisions that are in their best interests, and must be the least restrictive of their rights and freedom.

Consent to treatment

Under the Family Reform Act 1969, those aged 16 years or over are presumed to have the capacity to consent to surgical, medical and dental care and treatment.

However, if an assessment finds that those aged 16 and over lack the capacity to consent to any proposed treatment, the MCA will apply and others will make a decision based on best interests.

What are Deputyships?

The Court of Protection is able to make an order appointing someone to make decisions on behalf of a person who lacks the capacity to make decisions for themselves. This is person is called a Deputy.

There are two types of Deputyship:

  1. Property and finance – needed when there is property and/or financial issues to manage that cannot be managed in any other way. (However, if the only assets to manage are DWP benefits, a Deputy will not be needed as these can be managed under the DWP appointee scheme).
  2. Health and welfare – the Court of Protection appoints very few health and welfare Deputies as it is seen as a solution of last resort. The preferred route, taking account of the MCA, is that decisions are made on a best interest basis by all those concerned in the person’s welfare. This may include family and professionals.

The Court of Protection also has the authority to:

  • Make one-off declarations to deal with specific issues or to recognise a person’s right to be legally involved in a process which might for example include a declaration that requires a parent to be consulted in relation to medical decisions.

How are best interest decisions made by others?

A best interest’s decision can be made if a young person can’t make the required decision for themselves.

This requires a consultation process involving all those who have an interest in the young person’s welfare which will include, but not be limited to, those who have parental responsibility.

If there is a disagreement between those who are consulted, a best interests meeting should be called, making use of an advocate and mediation where appropriate. If an agreement cannot be reached, the Court of Protection can be asked to make the decision.

What is meant by ‘deprivation of liberty’?

The definition of liberty is being free to do the things you want to do and live where you want to live. Deprivation of liberty means taking someone’s freedom away.

In 2014, the Supreme Court decided in a case called ‘Cheshire West’ that someone is deprived of their liberty if they are both ‘under continuous supervision and control and not free to leave’.

This means that:

  • Up until the age of 16, a person with Parental Responsibility can provide consent to deprive a child’s liberty. However, in the case of 16 and 17-year olds, it is not sufficient to rely on parental consent and an application for authorisation will always be needed.
  • Before a child lacking capacity reaches the age of 16, there should be a review of their living arrangements to see whether they amount to a deprivation of liberty. If they do, then an application for authorisation once they reach the age of 16 will be required.
  • If a young person is going to require continuous supervision and control (i.e. 24/7 care), then this also needs to be reviewed to see whether they amount to a deprivation of liberty. If they do, then an application will be needed.
  • If the young person requires acts such as restraining (e.g. cuffs on their wheelchair), this may amount to a deprivation of liberty which will also require authorisation.

The practical bit

Given that a child, at the age of 16, becomes a young person with their own recognised legal status, it is important that as parents, we start to think about the transition process as early as possible.

To help, here are some keys things that you may want to think about irrespective of whether your child or young person has capacity or not:

  1. Have you considered how your child’s future care is going to be funded? Will your child be entitled to funding via adult services with the local authority or Continuing Healthcare Funding via the area Clinical Commission Group? This should start to be considered at age 16.
  2. What state benefits might your child be able to claim? Personal Independence Payments, Employment Support Allowance, and Universal Credit are the usual options. But you will need to ensure they are receiving the appropriate disability premiums.
  3. Would your child benefit from having an Independent Mental Capacity Advocate (IMCA) to help them with decision-making or give them a voice?
  4. Does your child’s Education and Health Care Plan (EHCP) need to be updated? Does it meet their needs? EHCPs can support a young person to remain in education until they are 25.
  5. Have you thought about a Will for your child? Are the intestacy provisions sufficient? Will they have capacity to make their own Will or do you need to consider a statutory Will being made by the Court of Protection.
  6. As a parent, have you thought about your own affairs?
    • Do you have a Will? If you are leaving money to your child, does it do so in a way that adequately protects their rights to claim any means tested benefits and statutory care funding?
    • Do you have either an Enduring or Lasting Power of Attorney?

We know that every child and young adult is different, and no two people’s circumstances are the same. There is no ‘one size fits all’ and planning for your disabled child’s transition to adulthood can seem daunting. There is a lot to consider and the legal position can seem complex.

At Hyphen Law, we specialise in helping people who lack mental capacity, and supporting their families.  We have extensive experience helping people to secure the right level of care and support and can provide Deputyship services or expert advice to Deputies.

Kelly Knight, Associate Legal Director of Hyphen Law

An Interview with Kelly

Elaine from our Comms Team caught up with Kelly on this topic, watch their chat below.

Although we are grateful to receive support from a number of corporate sponsors, we do not endorse any specific organisation. If you are seeking legal advice, we encourage you to contact a number of experienced solicitors for an initial discussion before selecting a firm.

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