Special Educational Needs – What happens when your child turns 18?

Jul 27, 2018

This is a question considered by most parents and usually our thought turn to the world of work, university, empty nest syndrome or perhaps worries about drugs and alcohol. But if you are the parent of a child with Special Educational Needs there is a whole range of other questions which have to be thought about.  Once your child attains the age of 18 he or she is an adult and the law dictates that at that stage parents cease to have authority over their child and his or her affairs.

This means that for those parents whose children have Special Educational Needs there are some very worrying questions about how that child’s finances and health issues will be managed. Sometimes it is possible to muddle along relying on a mixture of good luck and good will but this is never a complete answer and what is almost always needed is some careful planning in the run-up to your child’s 18th birthday.

For those whose children are at the fairly mild end of the special needs spectrum it may be possible to look at Lasting Powers of Attorney. A child with delayed development may have sufficient understanding to be capable of creating powers of attorney and if that is the case it is a useful starting point.  Care is needed to assess if the child does indeed have the necessary capacity and then the child can be helped through the process of choosing appropriate attorneys, quite possibly his or her parents but perhaps also including a sibling or other trusted friend or relative.

A Lasting Power of Attorney for financial affairs will probably relieve you of many of the worries over how your child’s finances are handled but sadly it is not quite as clear-cut with the Lasting Power of Attorney relating to health and welfare. The health and welfare power of attorney can only be used when somebody lacks capacity and this means that dealing with a child who has limited capacity can often be a problem, with the dividing line between the child having sufficient understanding of his or her needs, and having insufficient understanding being a very narrow and difficult line to tread.  From a legal perspective it may be very difficult to do anything about this but care must be taken to ensure that whenever your child needs to make a decision on important matters relating to health or welfare those caring for him or her understand the position so that, if possible one of the attorneys can help the child make the right decision, or in more extreme circumstances make the decision on behalf of the child.

Where your child’s special educational needs are more severe and they simply do not have the necessary capacity to make a power of attorney one has to think about using the Court of Protection. This Court is part of the English court system and is specifically designed to assist where someone does not have the capacity to look after their own affairs or to make their own decisions.  Historically the Court was very much a poor relation, mainly intended to deal with the affairs of wealthy elderly persons who had lost capacity.  Nowadays it deals with a much wider range of people and increasingly has specialist staff and judges; however it still remains something of a poor relation and its procedures are notoriously slow and expensive, hence the need to try and plan in advance for what happens when your child reaches 18.  The Court normally operates in one of two ways.  Its principal function is to appoint someone, occasionally more than one person, to be what is called a Deputy on behalf of your child.  A Deputy is someone who is charged with looking after the affairs of someone who cannot look after their own affairs.  The Court will define the parameters within which the Deputy can act without recourse to the Court.  The Deputy who will frequently be a parent has to provide an annual report to the Court.  Most deputies are appointed only to deal with financial affairs but they can also be appointed to look after health and welfare.  In the past the Court has been very reluctant to make health and welfare Deputyship orders mainly because there is a statutory assumption that we all have capacity unless it can be shown that we don’t; something which at times may seem nonsensical when dealing with a seriously mentally disabled person.  Fortunately there is an increasing recognition that there are a number of people with special needs so great they will never be able to make these decisions and the court is increasingly willing to make health and welfare Deputyship orders.  However it is still an uphill struggle and if you are concerned that your child will not be able to make these decisions you must be prepared for what is not always an easy job.  Again, this highlights the need for forward planning.

The second way in which the Court operates is to make specific orders relating to certain parts of the affairs of a disabled person and these sorts of orders are quite common, particularly in relation to health and welfare issues. In the short term this may well be a simpler and better solution than getting a health and welfare Deputyship order, but it is only a short-term solution.

It is perhaps worth adding that in addition to one off orders for health and welfare the Court frequently makes orders that can cover such things as trust and making wills, which could be important if your child was ever to inherit a large sum of money.

At Herrington Carmichael we understand these problems and have experience of making the necessary applications to the Court of Protection. For further information or advice please contact Andrew Smith.