A.M. Phillips - Education Law

A Specialist Education Law Practice

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Deputyship in the Court of Protection

The Mental Capacity Act 2005 assumes that at the age of 18 everyone has the full capacity to run their own affairs and can make their own decisions.

If this is not the case, then the young person's parents are able to seek a Deputyship Order

A Deputyship in the Court of Protection over both finance and health and welfare gives parents the same rights after the young person reaches age 18 as they had prior to the person becoming 18 to manage their affairs.  This is particularly relevant if a parent is going to be able to advocate for the young person in relation to the provision which they wish the young person to receive both now and in the future.

The Court of Protection can only make decisions about young people who lack capacity to make decisions for themselves on an individual basis.  It is therefore necessary for a parent to formally demonstrate that the young person cannot make decisions themselves. In order to do this It is usually necessary to obtain an expert opinion, dependent upon the evidence already available at the time of the application.

It is important to recognise that officers in the Court of Protection do not deal with developmental disability on a routine basis, as the majority of their work is related to previously able adults who develop dementia or other relevant conditions and are no longer able to manage their own affairs through Lasting Power of Attorney (LPA) applications.

What the Court of Protection needs to understand, is what is the young person’s actual level of functioning?  What sort of decisions can they make?  Everyone has a level of decision making capacity, even if it is a preference of a boiled sweet rather than a packet of crisps.  What is required is a suitably qualified professional who the Court of Protection will recognise, whom can explain clearly what the young persons level of functioning is and who will sign and return the Court of Protection form “COP3”.

When making an application to the Court of Protection, Social Services have to be notified of the application and they can choose to become Respondents to it.  This is quite rare, but it often occurs where there are parental disagreements with Social Services.

Social Services can choose to oppose the parental application.  Deputyship is particularly important, because Adult Social Services have been known to refuse to deal with parents who they deem as demanding.  The process of applying for a Deputyship is a lengthy process so an early application when the young person is approaching the age of 18 is advisable.

If you need help and advice on these, or any other matters relating to your child or young person's special educational needs, please call 029 2073 6329 to arrange your FREE initial telephone consultation or make an online enquiry by clicking here.