Young adults who lack capacity – guardianship orders
Any parent of a young adult who lacks capacity and is approaching 16, or has just turned 16, should take advice on whether they should apply for a guardianship order. Until the age of 16 you have been able to make decisions on behalf of your child. On turning 16 that automatic delegation of decision making to you, as their parent, comes to an end.
There may be various matters you have to assist with. For example their transition to adult services, continuing in full-time secondary school education or further education, any potential move to supported accommodation or reviewing benefits and support they may be entitled to. To be involved in this decision making where a young adult lacks capacity to make decisions for themselves, you would require to obtain the Court’s authority to allow you to make these decisions. The guardianship process can take 6 months or more to be granted. You should therefore take this into consideration when contacting a solicitor to progress an application for you.
If applying privately guardianship can be an expensive process. Legal Aid is available when making a guardianship application. Legal Aid comes in two parts, Advice & Assistance and Civil Legal Aid. Advice & Assistance covers the initial work your solicitor requires to undertake on your behalf and is means tested based on the young adult’s finances. Civil Legal Aid is the second part of Legal Aid which allows your solicitor to deal with the court process. There is an automatic grant of Civil Legal Aid based on the merits of the case (i.e. the person is 16 or over, lacks capacity and guardianship is necessary) where you are seeking any welfare powers (i.e. medical/dental treatment, where they will live etc.). It is therefore likely that the Legal Aid Board will meet the entire costs of an application for guardianship for most young adults.
Applications can be made to the Court shortly before the young Adult’s 16th birthday meaning that if the court hearing is before their 16th birthday your guardianship powers will come into force from their 16th birthday.
In any initial application for guardianship for young adults, the court is likely to grant this for 3 years (in some cases it may be 5 years). At the end of your initial period of appointment you would require to renew your appointment.
Should you have any queries about an application to the court to act as a young adult’s guardian, a member of our experienced adults with incapacity team would be happy to help. Some young adults with additional support needs and/or a learning disability may still be able to grant a Power of Attorney. A member of our team can discuss whether a simplified Power of Attorney would be appropriate.
