If your child is in this position it is important to be aware of how the law in Scotland affects you and them when they reach the age of sixteen since at this point, you are likely to need a guardianship order to carry on making decisions on his or her behalf. I’m using the term “guardianship” here to mean the process of applying to court to be appointed financial and/or welfare guardian to an adult who lacks capacity. Rather confusingly, the same word is used in a completely different bit of legislation to denote the ability to appoint someone else to exercise parental rights and responsibilities (PRRs) for your child in the event of your death. This can be done in your Will without the need to go to court, and has nothing to do with the child's capacity.
Until age sixteen, in fact, there is no particular difference between children who do and do not have capacity, in terms of making decisions for and about them. Such decisions, covering matters such as education, social life, healthcare and finances, are generally made by whoever has PRRs – usually one or both parents. However, at sixteen, the PRRs come to an end, except for the responsibility to provide “guidance” which lasts until age eighteen (or at least that’s what the law says – I know many parents will read that with a wry smile!). A young person who has capacity can then start to make decisions for themselves. However, where they do not, that limited parental right of "guidance" is not a sufficient basis for a parent to make the decisions likely to be required for a teenager with special needs, who may need to make transitions in terms of healthcare, education and accommodation.
At this point, therefore, a different legal regime takes effect, as set out in the Adults with Incapacity (Scotland) Act 2000. In terms of the Act, anyone with standing to do so (such as a parent) can make an application to court to be appointed guardian and be given powers to make specific decisions on behalf of the young person. These powers are tailored to each individual case but will normally cover things like everyday diet, leisure and dress; consent to medical treatment; choosing accommodation; schooling and college placements; and financial/administrative matters such as operating bank accounts, signing tenancy agreements or other contracts, and (where appropriate) managing investments and tax affairs, and buying and selling property.
The court application can be made up to three months before your child turns sixteen, although the appointment cannot take effect until their birthday. This gives you a chance to plan ahead and ensure there is no gap in provision. If time has got ahead of you, though, and a decision needs to be made quickly, it may be possible to get an interim (temporary) order which enables you to make specific decisions in the short term until the court has considered the full application.
It is a good idea to plan ahead if you can. While schools, social services, and so on may continue to accept your decisions as the parent of a young person with incapacity aged sixteen or over, that cannot be guaranteed. It is better not to wait to be told you cannot make a decision about your child before applying for a guardianship order, because the process takes time to complete - a minimum of 12 weeks and very possibly longer, depending on your local authority. Your solicitor will need to obtain two independent medical reports to confirm that your child does not have capacity. You will also need a suitability report prepared by the local authority, which is normally the step which takes the most time. A detailed court application also needs to be prepared by your solicitor.
Anyone with an interest in the young person (such as other relatives, social workers, carers, etc) must be served with a copy of the application before it can be granted. In the absence of opposition, orders are often granted at a first procedural hearing. You won’t normally have to come to court yourself unless you want to. Legal aid is sometimes available to cover the cost (although the process of applying for that adds to the timescale) but if you don't qualify, or prefer not to apply, we can normally undertake the work for a fixed fee so you have clarity about the costs involved. So if you think this might apply to your child, and he or she will shortly be celebrating their sixteenth birthday, it’s worth giving us a call to chat about what might be involved and how we can help.