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When to Consider Legal Deputyship or Guardianship

A pediatrician shares advice on applying for Deputyship/Guardianship for parents of autistic children in the UK.

A pediatrician shares advice on applying for Deputyship/Guardianship for parents of autistic children in the UK.

There will come a time when your child becomes an adult. In the UK, the legal age for an adult is 18 years. When your son or daughter reaches this age, he or she becomes legally responsible for his/her own decisions—if he/she is considered to have the mental capacity to make such decisions. 

If the young person with special needs is deemed to not have the requisite mental capacity, the Court of Protection will make the decision for him/her in matters of health, social, and financial affairs. Although most local authorities do take the parents’ wishes into account, under the law they do not have to because the young person is now an adult who is a ward of the Court. 

Once a child reaches the age of 18, parents and guardians may lose the right to influence the care of their son/daughter unless they have been legally appointed by the Court as a Deputy or Guardian. If a Deputyship Order is not in place, at 18 years plus one day, decision-making will automatically fall to the young person and then the local authority. Deputyship or Guardianship by the law prevents local authorities from making decisions for the young person which, at times, may not be what the young person would have wanted.

There are two types of Deputyship/Guardianship in the UK. Responsibilities include:

  1. Property and financial affairs such as managing the young person’s bank accounts, income, property, and investments, paying bills and accommodation costs on his/her behalf, and applying for benefits
  2. Making decisions related to his/her health and welfare, including living arrangements and medical care

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While becoming a Deputy or Guardian is not an anticipated milestone in your autism journey, I hope parents will consider this advice and start planning early. Don’t wait until a critical situation arises.

Tips from an autism mom

As a mother to Brendan, I applied to the Court of Protection for legal Deputyship/Guardianship before he turns 18 years old as it became clear that Brendan, with high support autism and significant learning disabilities, lacks the mental capacity to make decisions in health, social, welfare, and financial aspects. 

This process requires an application to the Court of Protection to obtain a Deputyship or Guardianship Order via a solicitor. The Court will consider whether the proposed deputy is reliable and trustworthy. The Court will furthermore consider whether the proposed deputy has the appropriate level of skill and competence to carry out the necessary tasks. The application process can be lengthy and it often takes months.

Quick tips

It is important to consider the following issues when deciding to apply for Deputyship or Guardianship:

  • Does your child have a range of medical conditions that require ongoing care and treatment?  
  • Will your child be pursuing education beyond 18 years old?
  • Once your child becomes an adult, who will assist in making decisions about his/her financial welfare?
  • What is his/her living accommodation and how will decisions be made?
  • If the young person is living away from home, e.g. in a residential home, who would you like to ensure that safeguarding procedures are in place, and how important is your involvement in the planning of safety?

This article was featured in Issue 124 – Autism Around the World

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