Decision making and PWS

Mental Capacity and the Law

The Mental Capacity Act (2005) (England and Wales) says that everyone aged 16 or over should be treated as able to make their own decisions, including about money, unless it’s shown that they can’t.

While people with PWS can make decisions, their capacity may fluctuate, which means additional measures  need to be put in place to keep them safe.

Find out more about mental capacity and PWS: 

Scotland: Adults with Incapacity Act 2000

This covers: 

  • decisions for adults who cannot make some decisions
  • power of attorney 
  • guardianship

Northern Ireland: Mental Capacity Act 2016

This covers: 

  • capacity and decision making 
  • care and treatment decisions 
  • rights and safeguards

Lasting Power of Attorney or Court of Protection Deputyship

What's the difference?

Court of Protection Deputyship is usually needed when someone aged 18 or over lacks the mental capacity to make certain decisions and has not made a valid LPA; a deputy is appointed by the court to make specified decisions on their behalf.

Deputyship

A Lasting Power of Attorney (LPA) can be set up by your son or daughter once they reach 18, if  they have the mental capacity to understand and agree to it, allowing trusted people to help make decisions about their health and welfare or manage their finances, as appropriate. 

LPA

Lasting Power of Attorney

We recommend exploring a Lasting Power of Attorney (LPA) when your son or daughter turns 18 because it can provide a legal framework for trusted people to support them with important decisions.

There are two types: a Health and Welfare LPA, covering decisions about care and medical treatment, and a Property and Financial Affairs LPA, covering money, benefits and financial matters.

We advise getting both in place. An LPA can help ensure that the people who know your son or daughter best can support them when they are unable to make particular decisions themselves.

  • Making a Health and Welfare LPA

    A health and welfare LPA allows you and anyone else your child chooses to make decisions on their behalf when this is necessary. 


    It covers:


    • medical treatment

    • care decisions

    • where they live

    • daily care

    • life sustaining treatment (if chosen)


    You can set this up through the government website 

    https://www.gov.uk/power-of-attorney


    You can also do this through a solicitor, but they will charge you a few hundred pounds. 


    Through the government website the only charge will be to the OPG where you will be asked to pay £82.50 for the registration fee.  Each LPA has its own fee.

    Your child will be referred to as the donor and you the attorney.


  • Property and Financial Affairs LPA

    • If your young adult has the mental capacity to consent to it, they can give you the legal right to manage their money. 
    • You must always act in their best interests and keep their money separate from your own. 

    Allows you and any other nominated attorney to assist with:


    • bank accounts

    • bills

    • benefits

    • savings

    • direct debits

    • financial management

    • An LPA must be registered and usually costs £82. Help with the cost may be available depending on their finances. 
    • You can set one up on the government website.

  • Scotland: Power of Attorney

    Overview 


    https://www.mygov.scot/power-of-attorney 


     

    Office of the Public Guardian (Scotland) https://www.publicguardian-scotland.gov.uk/power-of-attorney 


     

  • Northern Ireland: LPA and EPA

    An EPA lets you choose someone you trust to manage your property and money. 


    In Northern Ireland, an EPA covers financial matters only. 


    This is different from a health and welfare lasting power of attorney (LPA) used in England and Wales, which can also cover health and welfare decisions.


    https://www.nidirect.gov.uk/articles/managing-your-affairs-and-enduring-power-attorney

Court of Protection Deputyship

If your child doesn’t have the mental capacity to give you power of attorney, you can apply to the Court of Protection to become their deputy.

As a deputy, you’ll be authorised by the Court of Protection to make decisions on their behalf.

This option costs more and involves an application process and ongoing fees, so it’s best to explore other options first.

  • Scotland: Guardianship

    In Scotland you cannot apply to be someone’s deputy. 


    You can set up a guardianship instead. 

    Simple guide: 


    https://www.gov.scot/policies/social-care/adults-with-incapacity/ 

  • Northern Ireland: Apply to be a Controller

    If you live in Northern Ireland you cannot apply to be someone’s deputy.


    You can apply to become a controller for someone instead.


    Find out more

More Support and Information

England and Wales:

We are here to support you. If you have any questions or need further help, you can contact the Specialist Advisors Team at supportteam@pwsa.co.uk or by calling 01332 365676.