Helping a loved one lacking mental capacity can be extremely difficult both emotionally and legally. In order to protect the individual, any person making decisions on their behalf needs the appropriate legal documentation before their decisions are considered.
For a parent raising a child lacking capacity, the law has always worked alongside them and given them automatic rights through Parental Rights protections. All financial and medical decisions would pass to the parent whilst the person lacking capacity is a child.
However, when a minor transitions into adulthood, the parent that once had rights, could find themselves in a quagmire of legalese, confusion and reduced rights.
The Office of the Public Guardian quarter 2 statistics for LPA applications suggest that they are starting to plateau and even decrease. Between April and June 2018 there were 2,423 Enduring Power of Attorney (EPAs) applications registered, this is an 18% decrease from the same time a year earlier.
Despite 197,836 Lasting Power of Attorney applications suggesting a 2% increase on a year earlier, the demand is slowing in comparison to recent years.
The Office of the Public Guardian have commented: “The sharp increase seen during 2015 and 2016 was largely due to increased publicity and the new online forms introduced in July 2015 making it simpler and faster to apply for LPAs. However, the upward trend has slowed down over the past 12 months.
“In April to June 2018, there were 7,414 applications made under the Mental Capacity Act 2005 (MCA), down 3% on the equivalent quarter in 2017 (7,623 applications). Just under half (48%) related to applications for appointment of a property and affairs deputy.
“In comparison, there were 9,050 orders made under the MCA, 11% less than the same quarter in 2017. Just over a third (34%) of the orders related to the appointment of a deputy for property and affairs.”
As more people lose awareness or reduce the use of LPAs, some parents may fall into a similar trap of public naivety and temporarily lose the rights they had over their child when they were under the age of eighteen.
The Government printed ‘A guide for people who work in health and social care’ highlights the ambiguity surrounding legislation for children lacking capacity that are transitioning into adulthood.
Legislation suggests that there is an overlap between the Mental Capacity Act 2005 (MCA) and the Children Act for 16 and 17 year olds. Most of the provisions of the MCA apply to young people, and the Code of Practice for the MCA gives guidance on how to proceed. It can be easy to see how a parent could overlook these changes and lose their parental rights over their child lacking capacity.
The Government and health officials need to provide clear guidance on how a parent/carer can easily manage the transition from possessing Parental Rights over a minor to Deputy or Attorney rights over their adult child lacking capacity. It is imperative that further unnecessary distress, caused by ambiguity and overlapping legislation, is eliminated completely.
Have you helped confused parents obtain LPAs or deputy rights? Have you seen many cases where parents lose their rights until they gain legal documentation? Should more be done to help?
