Mental Capacity
The Mental Capacity Act (2005) sets out the legal framework in England and Wales for making decisions on behalf of those 16 and over who lack the capacity to make decisions for themselves. It protects their right and dignity by ensuring that they are supported to make their own decisions where possible and, otherwise, by setting out how decisions must be made in their best interests.
Lasting Powers of Attorney may be granted for health and welfare and/or property and financial decisions by those young people with the capacity to give it. Application to the Office of the Public Guardian can be made on line. Applications currently cost £84 each but this fee can be waived if proof of low income is provided.
If the young person does not have mental capacity so is unable to give their consent to appoint attorneys, then a system of Deputyship may be used. This means the Deputy can make decisions for them, in their best interests. The Application is to the Court of Protection and separate applications are necessary for health and welfare and/or property and financial affairs. There is a fee for application (currently £421 and refundable depending on circumstances) and a smaller ongoing supervision fee. A Deputy then receives a court order outlining what they can and cannot do.
Under the Equality Act 2010, there is a right to Reasonable Adjustments when accessing and managing state benefits. If Reasonable Adjustments are not sufficient, a friend/family member or organisation can become an Appointee; this gives the right to manage the paperwork around benefits, whereas managing somebody’s money directly requires either Lasting Power of Attorney or Deputyship. The Department for Work and Pensions will visit the claimant and the potential Appointee to assess the situation and decide whether it is a suitable arrangement. If LPOA or Deputyship is already in place, an Appointee is not generally needed to manage benefits.
A Deprivation of Liberty Order may be necessary in limited and specific circumstances to keep some people with a Learning Disability and/or autism safe, for some people in residential care or hospital settings. Where this is thought to be necessary, it must be authorised by a court and subject to regular safeguarding checks. (Mental Capacity Act 2005).
Benefits
The 16-19 Bursary (which replaced EMA) is available to those in full time education beyond 16. The link explains eligible courses, how to apply and how much to expect (currently £1200 per year). The young person’s school/college should initiate contact with parents/carers in the first instance.
For detailed explanation of how benefits change when a young person reaches 16 , see this section of the Connect website.
- This is the specific section relating to Universal Credit
- This is the specific section relating to Personal Independence Payment
Mencap also has a series of Easy Read Guides about applying for PIP here.
In addition to carrying out an assessment of need on the young person, the local authority also has a responsibility under the Children and Families Act 2014 to carry out a carers’ assessment; this will identify specific needs and determine whether or not Carers’ Allowance is payable. A factsheet with more details is here and the North Yorkshire link for carers is here.
Most people find the benefit system complex and challenging. There are some places to go for help in understanding and accessing benefits:
Family Fund’s online ‘courses’ go through the process step by step
Entitled to helps to calculate eligibility to all available benefits by using an on-line calculator
Turn2us helps those who may struggle financially, providing information about grants and benefits
Details of financial help with education, travel and energy are on the associated pages.
Local Authority Services, Direct Payments and Personal Budgets
If, following an Assessment of Need and then a Financial Assessment by the Local Authority, support is offered to the individual to meet their assessed care and support needs, the amount of money allocated to this is known as the ‘personal budget.’ It can be managed in the following ways:
1 By a third party, usually the Local Authority (‘arranged services’)
2 By the individual or their appointee (‘Direct Payments’)
3 A combination of 1 and 2 above.
Establishing Direct Payments is more time consuming and requires ongoing paperwork and monitoring, but can give more choice about how the allocated funds are spent. It is more flexible and can respond to changing needs in a timelier fashion.
Further detail from the Disability Justice Project is here.
Wills and Trusts
There are certain extra considerations when making a Will in order to safeguard the future of the young person with a Learning Disability and/or Autism in order to provide continuity of care and to ensure that they are financially secure. Avoiding direct inheritance is a key consideration when drawing up a Will as any amount which pushes their personal savings above £6000 will reduce their entitlement to means tested benefits.
Mencap has a dedicated guide to making Wills, which set out all future wishes and Trusts, which safeguard money, property and possessions. They run regular free on line seminars giving essential information prior to meeting with a solicitor. They can also provide a list of specialist professionals in our local area who are STEP (Society of Trust & Estate Practitioners) qualified. It is strongly advised that the services of a solicitor with the correct experience is engaged.