Many young adults in the UK live with disabilities, and some lack capacity to make decisions for themselves about where they should live, who they should live with, and what sort of activities and social events they should get involved with.
Court of Protection
It is certainly not unusual for a young adult in such a situation to remain living with their parents. In some ways, this makes practical sense, as well as financial sense. However, what is less clear is whether this is in the best interests of the protected party and it is a question that sometimes can only be answered by the Court of Protection.
On the one hand, all of us must fly the nest at some point and it is generally the aim of the Court of Protection to make sure that protected parties can live as independently as possible, with help and support provided to enable the individual in question to live safely and with the appropriate care.
Adult social care teams are wary of parents being over-protective of adult children and potentially inhibiting them from gaining the life experience they need to look after themselves, even if they do have a disability. This can sometimes result in social workers imposing safeguarding measures or bringing Court applications against families who are perceived to be obstructing a protected party from enjoying their independence.
However, on the other hand, parents who have cared for their child throughout their life will know their child’s routines, will be able to interpret their behaviour quickly, understand their temperament, and will sometimes be their child’s main social outlet as well as a source of security.
Sometimes, a critical factor is the hard truth that – save for very unfortunate circumstances – most of us will not outlive our parents and it is better that a protected party who can live independently should be given the support and encouragement to do so as soon as possible, even if it appears daunting (and an order for someone to be moved will often be contingent on the process being stage-managed carefully).
That is not to say however that every protected party should just be moved into a new location for the sake of it. The environment has to be suitable and many people with enhanced needs, disabilities, and complex mental health issues will not adapt well to being moved into an apartment block in a different part of town.
Supported living placements are not always readily available and of course, when being moved into shared accommodation the other occupants need to be people with whom the protected party will get on well with.
Mental Capacity Act 2005
When social workers are not in agreement with the family members, and the matter comes before a Judge, the Court of Protection will apply the best interests criteria – set out in section 4 of the Mental Capacity Act 2005. Section 4 does make it clear that someone’s age, gender, appearance, and health condition should not be the sole factor in assessing what is best for them. There are other factors that the Judge will take into account. If for example, a young adult is likely to regain capacity to some extent this could change things, and even if they are unlikely to, the individual should be given help to express their views as far as possible. Aside from this, the Judge will consider:
- That person’s wishes (both past and present);
- Their personal values;
- What they would be likely to do if they had capacity;
- The wishes of those caring for him/her or interested in his/her welfare;
- The views of their attorney (if appointed) or litigation friend;
- The views of any experts; and
- Any other relevant factors.
The Court’s discretion is broad, but quite often a Judge will be guided by the views of professionals including the Special Visitor when there is a stand-off between the family and the social care team, as Special Visitors do often provide an impartial view and have no emotional investment in the case.
How can Nelsons help
If you have any questions regarding the subjects discussed in this article, please contact Lewis or another member of the team in Derby, Leicester or Nottingham on 0800 024 1976 or via our online form.Contact us