Making decisions and planning for the future

For many autistic young people, transitioning into adulthood brings greater independence alongside important responsibilities. This often includes making decisions about education, employment, healthcare, finances and daily living.

Understanding mental capacity, and the legal options available, is essential for planning ahead and ensuring the right support is in place when needed.

What is mental capacity?

The starting point for what support is available to any adult starts with ascertaining whether they have the requisite mental capacity to make certain decisions themselves. A previous article explored what capacity means and why the assessment of capacity is important.

Once capacity has been established, there are usually two outcomes:

• a finding of capacity
• a finding of lack of capacity.

Each outcome has different legal implications and next steps.

If you have capacity: Planning with a lasting power of attorney (LPA)

Even where capacity is confirmed, deeming a person to have capacity to make decisions themselves regarding the management of their affairs and decisions regarding their welfare, it is often advisable to plan ahead. Many individuals choose to put legal arrangements in place to ensure they have support if circumstances change.

What is an LPA?

An LPA is a legal document that allows you to appoint trusted individuals (known as attorneys) to assist and support you with decisions.

There are two types of LPA in England and Wales:

1. Property and Financial Affairs LPA

This allows your attorney(s) to help with:

• managing bank accounts
• paying bills
• handling benefits and income
• dealing with financial institutions.

This type of LPA can be used with your consent while you still have capacity, ensuring that you have support in tasks that you may find difficult and overwhelming to manage yourself.

2. Health and Welfare LPA

This covers decisions about:

• medical treatment
• care arrangements
• daily routines
• living arrangements.

This LPA can only be used if you lose capacity to make these decisions yourself.

Why consider a Lasting Power of Attorney?

Creating an LPA can provide practical and emotional reassurance. It can be particularly beneficial if:

• certain situations feel overwhelming
• you would prefer support dealing with organisations or paperwork
• you want to ensure trusted people can step in if needed.

An LPA does not remove independence – it enhances it by putting a support system in place that you control, allowing people that you trust to support you in managing your affairs with you.

You can also include personal preferences and instructions, ensuring that your attorneys act in line with your wishes.

If capacity is lacking: Understanding your legal options

If a person is assessed as lacking capacity, it is natural to feel concerned about how decisions will be made moving forward for your friend or loved one.

What does lack of capacity mean?

A person may be found to lack capacity if they cannot understand, retain, evaluate or communicate decisions. This can arise from conditions affecting the brain or mind, either temporarily or permanently.

Immediate steps to protect finances

Where someone lacks capacity to manage their financial affairs, it is important to act quickly to protect them. This may include:

• ensuring bills are paid
• safeguarding bank accounts
• preventing financial abuse or exploitation
• limiting access to large sums of money.

Is there an existing Lasting Power of Attorney?

A key question to ask in the first instance is whether the person has previously made a Property and Financial Affairs LPA or Enduring Power of Attorney; and if so, whether these have been registered with the Office of the Public Guardian.

If yes, the appointed attorney(s) can begin to manage the affairs of the person to whom they are appointed.

If no, the person is no longer able to create an LPA once capacity has been lost.
If the answer to the above is no, you must then consider whether you may need to make an application to the Court of Protection to appoint a Deputy for that person, to support them in a similar way as an attorney would have.

Appointeeship for State Benefits

If the person has no savings, and their only source of income stems from state benefits (i.e. Universal Credit, Personal Independent Payment etc), a Deputyship application to the Court may not be required. The Department for Work and Pensions (DWP) can appoint an appointee. This allows someone to manage a persons’ benefit income in their best interests without having to go through the Court process.

Applying for Deputyship: Court of Protection

If, however, a person has savings, numerous bank accounts, and income stemming from other sources, it is likely that you will need to consider the making an application to the Court of Protection to appoint a Deputy for Property & Financial Affairs for this person. 

The Court of Protection in England and Wales is responsible for making decisions on behalf of individuals who lack mental capacity, which includes:

• appointing a Deputy for property and financial affairs
• making one-off or urgent decisions
• ensure all decisions are made in the person’s best interests.

The application process is carefully assessed to ensure the most suitable person is appointed as Deputy.

The Birketts view

Our specialist Court of Protection team provides expert legal advice on:

• mental capacity assessments
• Lasting Power of Attorney (LPA) preparation and registration
• Court of Protection applications
• Deputyship orders
• ongoing support to both Deputies and Attorneys.

We understand that these situations can be complex and emotionally challenging. We are here to provide clear, compassionate and practical guidance tailored to your family’s needs.