28 Jan 2019
By Stewart Dunbar, Associate Solicitor, Private Client, Blackadders LLP
As society changes its approach to “disability” over time, parents of children with disabilities or additional support needs often find themselves in the front-line. The structure of disability benefits frequently changes, with new rules dictating what payments are available, and the roll-out of replacement systems is often protracted and rocky (see Personal Independence Payments and Universal Credit). Additionally, the central support structure traditionally provided by the Social Work Department has shrunk due to funding cuts: with key services taking longer to access or indeed being functionally unavailable in some areas (see the Transitions Service). The rise of Self-Directed Support (SDS) has given families a useful and flexible way to access funding for social care services, however, it too requires energetic participation from parents to get the best out of it.
All of which is to say that parents have to be very lively in order to ensure that their child can live as full and healthy a life as possible. However, a parent’s legal decision-making powers come to an end when their child becomes an adult at age 16 (not 18, as in England & Wales). Without obtaining further legal powers to continue to act on their child’s behalf, parents will then find themselves fighting battles with one hand tied behind their backs.
For youngsters who have the capacity to understand and grant a Power of Attorney in favour of their parent(s), they should usually be encouraged to do so once they turn 16. For youngsters who would not be able to understand that idea, Guardianship is often essential.
Guardianship is granted by the Sheriff Court, giving you the power to make decisions on another person’s behalf. This can cover both welfare and financial matters, including decisions about a person’s education, medical and care arrangements, through to managing benefits & SDS payments, paying for care services and arranging respite or residential placements.
For a variety of reasons, the guardianship application process is time-consuming. For instance, within the Edinburgh City Council area, the process will generally take over a year at the moment. That is a long time to wait if urgent decisions cannot be made in the meantime!
For youngsters who will definitely need guardianship, this means that families actually need to start the application process when the child is about 14 and half years old if they are to stand a good chance of having guardianship in place in time for the child’s 16th birthday. It is never too late to start of course, but it certainly pays to plan ahead!
Blackadders have significant experience in handling both Guardianship and Power of Attorney involving young people with disabilities or additional support needs. Contact Blackadders today to arrange to speak to one of our solicitors in your area.