Scottish Learning Disability Week: Planning for Young People with Incapacity

Scottish Learning Disability Week 2022 takes place from Monday 2nd to Sunday 8th of May this year. The theme for this year is “We All Have Human Rights”, and the Scottish Commission for People with Learning Disabilities (SCLD) is committed to raising awareness of this fact, to help to improve the lives of people with learning disabilities.

To aid in raising awareness and working towards an inclusive Scotland, our Family Law team at Watermans want to highlight the importance of legal planning for young people with incapacity.

When we think of people who don’t have the capacity to make their own decisions, most of us generally think of an older person suffering from an illness like dementia. While this is sadly quite often the case, it is also important not to overlook the needs of young people who lack capacity. Some children may have been born with a condition which compromises their ability to make decisions for themselves, while others may have suffered an illness or accident during childhood which has affected their capacity.

If your child is in this position, it is important to know how the law in Scotland affects both you and them. When they reach the age of sixteen, the legal framework for making decisions about their welfare and finances changes. At this point, a young person with incapacity is treated as an “adult” in law, and you no longer have the parental rights and responsibilities which were the basis for making decisions for them previously.

Because a young person without capacity can’t make a Power of Attorney, you will need to ask the court to make a guardianship order to continue making decisions on their behalf.

Anyone with standing to do so (including a parent) can make an application to the court to be appointed guardian and given powers to make specific decisions on behalf of the young person. The court will scrutinise the proposed powers to ensure that your child’s human rights are respected, and they have the opportunity to exercise as much autonomy as possible in their everyday lives. These powers are tailored to each individual case, and can cover things like

  • Care arrangements, including where they will live
  • Everyday matters such as diet, dress, and leisure activities
  • Consent to medical treatment
  • Managing self-directed support payments (SDS) allocated by the council
  • Education and training
  • Managing any income and assets the young person has over and above benefits

The court application can be made up to three months before your child turns sixteen, although the order cannot take effect until their 16th birthday. This gives you the chance to plan ahead and ensure there is no gap in provision. It is important not to wait to be told that you cannot make a decision about your child before applying for a guardianship order, as the process is likely to take a minimum of 12 weeks to complete and can often take significantly longer. While the local council, school and doctors should continue to cooperate with you to make decisions about your child, a guardianship order gives you peace of mind that you have the specific legal authority to act on their behalf.

 The importance of everyone leading inclusive, fulfilled lives is central to the work of both the SCLD and our Family Law team at Watermans. By raising awareness of learning disabilities and helping people to understand how the legal framework for respecting their rights operates, we aim to help people who experience these disabilities and their families to make decisions which respect their human rights, enable their preferences to be respected and maximise their autonomy.

At Watermans, we understand that you only want what is best for your child, and the last thing you need to worry about is the legal process behind guardianship orders. We give straightforward legal advice, and our aim is to work in partnership with you to resolve things quickly, so that everyone can move forward with their lives.

If you want more information on the subject of young people with incapacity, or wish to begin the guardianship process, contact our Family Law team using the form below.

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Our Family Law expert

“People often say to me that family law must be a depressing job – but I’ve never felt that. What we do makes a difference. I love working with my clients to understand their stories, help them work out where they want to get to, and collaborate with them to achieve their goals. Seeing people come through it and embark on a new stage of their lives is a great feeling.”

Dianne Millen, Head of Family Law