Deputyships and Mental Capacity

Parental responsibility ends at 18 and there is currently no legal way to extend this. When someone lacks the capacity to make their own decisions, the Mental Capacity Act (2005) applies; in some cases this starts at 16, although parental responsibility remains until 18.

Mental capacity is always assumed unless it is possible to demonstrate otherwise. Assessments are specific to the time they were completed (there is currently no clear guideline as to how long they are valid for) and to the specific decision that is being made. This means that people are likely to have multiple mental capacity assessments throughout their lives for different decisions.

From 18, decisions are made for adults based on what is in their best interests and parents are no longer the ‘decision makers’.

Mental Capacity Act 2005 and Best Interests

The Mental Capacity Act outlines who should be consulted within a best interests decision:

• Anyone named by the individual as someone to be consulted
• Any deputies appointed by the court
• Anyone involved in the person’s care or who has an interest in their welfare

This makes it clear that parents should be consulted as part of best interest decisions.

Deputyships

The Court of Protection (CoP) can make one-off decisions for people who lack capacity to make their own decisions, or they can appoint a deputy.

Deputyships are applied for through the CoP and allow a nominated person to make certain decisions on behalf of another adult if they do not have capacity. Deputies still have to follow a best interests decision making process once appointed.

There are 2 types of deputyships:

1. Property and Financial Affairs

• Generally for people who have assets or more complex financial circumstances e.g. property or savings. This may also be needed to access Child Trust Funds
• In some circumstances, applications can be made at 16
• A property and financial affairs deputyship generally gives quite broad decision making powers over a range of areas

The link below contains further information about managing finances and how to apply for a property and financial affairs deputyship.

2. Personal Welfare

• Relates to decisions about a person's care, support and medical treatment
• In many situations, decisions can be made using the Mental Capacity Act 2005 and its best interests principles, without the need for a deputyship order.
• If there is a dispute in the best interests process, the decision is referred to the Court of Protection where the judge becomes the decision maker
• Personal welfare deputyships are usually only granted for deputies to make decisions in specific areas; they generally do not give broad decision making powers
• Personal welfare deputyships are usually only considered when decision making is complicated by issues such as family disagreements or the need to make a series of related decisions over time
• You cannot apply for a personal welfare deputyship before the person turns 18

The court grants very few personal Welfare deputyships in comparison to property and financial affairs deputyships. The Mental Capacity Act code of practice states that 'one-off' decisions are preferred over appointing a personal welfare deputy.

Please see the links below for further information about personal welfare deputyships