Do I need a Power of Attorney for my child who has a learning disability or autism?

Powers of Attorney are governed by the Mental Capacity Act 2005, and they aim to empower people to be able to make their own decisions, if they are able to, regardless of a person’s diagnosis.

We all have varying degrees of capacity and whether a person can make a decision depends on the situation that they find themselves in.  For example, your son/daughter may be able to manage £20.00 pocket money and decide how best to spend it, but he/she may lack capacity to understand, safeguard and manage a much larger sum of money.

A Power of Attorney is a legal document that enables a person to have supported decision making.  This means that your son/daughter could understand and have the capacity to know that he/she needs help to safeguard and manage larger amounts of money, and that he/she trusts you and understands that you are the best person to help him/her to manage his/her funds.

Does my son/daughter need a Power of Attorney?

The first question that should be answered is – does your son/daughter need help to manage his/her decision making?  A person with a diagnosis of autism can be high functioning and therefore may be perfectly capable of managing their own property and financial affairs and they may not need assistance.

However, from a legal view, we always advise anyone over the age of 18 to have a Power of Attorney and a Will, as this is just good planning as none of us know what is around the corner, whether it be accident, illness or old age etc.

If you have decided that your son/daughter needs assistance in the future, then you need to consider the following;

• If your son/daughter’s only income is from DWP state benefits, then many people find that it is not necessary to complete a Power of Attorney, as they can be made “appointee” with the DWP to be able to manage the benefits on their behalf.
• If your son/daughter has monies other than DWP state benefits, such as a compensation payment, private income, bank account, inheritance etc, then you should consider a Power of Attorney, so that you can help your son/daughter manage his/her funds and assets.

At what age, should we consider at Power of Attorney?

A Power of Attorney can only be entered into once a person attains legal age, which is 18 years.  Prior to this, you are classed as his/her parent/guardian and therefore have certain powers to help your son/daughter, such as set up a children’s bank account and access the funds on his behalf.

Can I make a Power of Attorney for my son/daughter?

No.  A Power of Attorney is a personal legal document and the person who it is about, is the only one legally allowed to arrange the Power of Attorney.  You may think you are helping your son/daughter, but it is his/her decision alone to make a power of attorney and only they can instruct on it.

Who can make a Power of Attorney?

For a person to be able to make a Power of Attorney they must be 18 years or over and they must have the mental capacity to make a Power of Attorney.  This means that they must understand the process and consequences of making a Power of Attorney.  If your son/daughter has a diagnosis then it may be best to get a medical opinion to support the making of a Power of Attorney, to prove that your son/daughter has the requisite mental capacity to make the decision to appoint an attorney.

What if he/she does not have capacity?

If it is deemed that your son/daughter does not have the requisite mental capacity to make a Power of Attorney, then your option is to make an application to the Court of Protection.  The Court will decide who should be made Deputy to manage their ongoing property and finances and what powers you will have, going forward.

My son/daughter finds it difficult to concentrate and meet new people?

Unfortunately, the Power of Attorney is a legal document and has to be completed in a set format, in a set way for it to be valid.  This can be very stressful for someone with a disability or autism.  There is no getting around the legal rules.  This means that your son/daughter, may be precluded from entering into a Power of Attorney just because of the process that must be followed, even though they have capacity.

It is important that your son/daughter understands the process and can be made to feel as comfortable as possible, but he/she would need to meet people to get the process completed, as their needs to be a witness and a certificate provider.

Should I seek legal advice?

Yes.  You may be looking around the internet for answers, and you will get differing answers from articles, forums etc.  To know whether a Power of Attorney is right for you and your son/daughter, it is best to seek legal advice on your actual personal circumstances.  Although a Power of Attorney may be correct for one person, it may not be the preferred option for all.  Therefore, it is best to seek advice, rather than spending money on something that may not suit your needs.

Here at Andrew Isaacs Law, we can listen to your circumstances and tailer a solution that meets your actual needs.  Contact us today to see how we can help you.

Ginette McCaffery – Wills, Probate & Trusts Solicitor

09.10.2023