Lawyer Monthly - September 2023

of capacity is required for either a property and financial affairs application or a health and welfare application – or both. Such assessments can be conducted by any of the following professions: • Medical practitioner • Psychiatrist • Approved mental health professional • Social worker • Psychologist • Nurse, or • Occupational therapist The person in question would need to demonstrate that they are capable of understanding, retaining, using and weighing the relevant information to hand when it comes to making the specific decision in their own best interests. Under what circumstances might it be appropriate for a youth to be assigned a deputy for decisionmaking purposes? What are the key aspects to consider with this? Basically, if the youth in question has been deemed to lack capacity for the specific decision or act required, they will require a deputy to undertake this role for them. The five main principles of the Mental Capacity Act that always need to be considered and taken into account: 1. Always assume the person is able to make the decision until you have proof they are not. 2. Try everything possible to support the person make the decision themselves. 3. Do not assume the person does not have capacity to make a decision just because they make a decision that you think is unwise or wrong. 4. If you make a decision for someone who cannot make it themselves, the decision must always be in their best interests. 5. Any decisions, treatment or care for someone who lacks capacity must always follow the path that is the least restrictive of their basic rights and freedoms. What other key considerations should the legal guardians of a severely disabled youth take into account as they approach 18 years of age? As a parent or carer, supporting a young person who lacks capacity to make financial decisions is challenging at the best of times. These challenges are amplified when a child is transitioning from a minor to an adult. In particular, once a young person enters adulthood, you must decide if it is appropriate for you to continue to make financial decisions on their behalf, and follow the rules in place to allow you to do so. In summary, there are three ways you may legally manage a young person’s financial affairs: 1. Appointeeship. If the young person has been deemed not to have capacity and is in receipt of state benefits only, then an appointee would be suitable. It is important to note that the remit of an appointee is solely to manage one’s state benefits. 2. Deputyship. If the young person has been deemed not to have capacity and has assets, then an application to the Court of Protection will be required for someone to be appointed as deputy to manage those assets and income. You can make an application to the Court of Protection when a young person is under the age of 18 if you believe the young person will lack capacity to make decisions for themselves when they turn 18. This will ensure that you have the proper legal authority to make financial decisions for them when they reach adulthood. 3.Lasting Power of Attorney. If a young adult has capacity to do so, they may wish to make a lasting power of attorney for property and financial affairs to allow someone they trust (called the ‘attorney’) to make financial decisions on their behalf. When a child or young person transitions to adulthood, new principles also apply to health and welfare decisions – including decisions about care – made on their behalf. Again, this is a particularly challenging time due to the fact that the young adult, on attaining adulthood, will now come under adult social care and not children’s social care. There will also likely be moves to different hospitals, different integrated care boards, different doctors – all as of the result of becoming an adult. These moves should not be underestimated when it comes to the work involved and the affect it may have on the young adult (and their parent/carer). 46 LAWYER MONTHLY SEPTEMBER 2023 As a parent or carer, supporting a young person who lacks capacity to make financial decisions is challenging at the best of times.

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