Helping someone make decisions about social care support

If someone finds it difficult to understand and make decisions for themselves, they may need someone in their life who is legally responsible for helping them make decisions, or even to make decisions for them.

This is particularly important when it comes to decisions about their health, social care support and finances.

Being able to understand and make decisions is known as Capacity

Most people are able to make everyday decisions for themselves.

However, there will be times when people struggle to make decisions, understand them, communicate them or remember them.

This could be because of:

• a learning disability
• dementia
• a mental health condition
• a head injury
• a physical disability that prevents them from communicating.

In these circumstances, the person may be described as lacking Capacity. They may need someone to have the legal authority to make decisions on their behalf.

The law says that even if someone has a condition or disability in the list above, you cannot assume that they are not able to make their own decisions.

Before anyone can be granted the power to make decisions on someone else’s behalf, it has to first be established how much the person is able to make and understand decisions.

How does this apply to social care support?

If someone needs support to help them live a good life, there are lots of decisions that have to be made about this.

If the person who needs support lacks Capacity (they are unable to make or understand decisions themselves), someone else will have to help them to make decisions, or make decisions for them.

There are two ways that a person can apply for legal authority to make decisions for someone else: Power of Attorney or Guardianship.

Power of Attorney

A Power of Attorney is a written document giving someone else the legal authority to make decisions on a person’s behalf.

The person needs to have Capacity (be able to make and understand decisions at the moment) to apply for a Power of Attorney.

A Power of Attorney is usually used when someone thinks that their ability to make decisions may get worse in future. For example, this may be because of dementia or a worsening health condition.

A person has to be over 16 to apply for a Power of Attorney.

The Power of Attorney document lists the names of the people (known as attorneys) who the person wants to help them, and says what powers these people will have.

Most people do not think about the need to put Power of Attorney in place until something happens to their health that affects their ability to make decisions or to communicate.

But it can be helpful to apply for a Power of Attorney in advance, so the person has time to think through what they want.

A person needs to be able to make and understand decisions in order to apply for a Power of Attorney.

Guardianship order

If someone is unable to make and understand decisions (lacks Capacity), they will be unable to apply for a Power of Attorney.

In this case, another adult who wants to have the legal authority to make decisions for them has to apply for a Guardianship order.

Guardianship orders are most often used when a child who lacks capacity turns 16. Before they are 16, the child’s parents usually have legal authority to make decisions on their behalf.

Parents need to apply for Guardianship in advance, in order to keep this legal authority after the child turns 16.

Guardianship orders may also be used when someone’s ability to make and understand decisions has gotten worse, before a Power of Attorney was able to be put in place.

There are two type of Guardianship orders:

• Welfare Guardianship, where you have the power to make decisions about the person’s health and wellbeing
• Financial Guardianship, where you have the power to make decisions about the person’s money.

You can only apply for Guardianship when someone has been assessed as lacking capacity.

It can take a long time for applications to be processed, so it is a good idea to plan ahead as much as possible.

Planning ahead is especially important if you are the parent of a child who lacks capacity. You will need a Guardianship order in place to have the legal authority to make decisions for them when they turn 16.

Next steps

Find out more about Power of Attorney and Guardianship in the Resources section below.

You may also find it helpful to speak to an Independent Support Organisation or Carers’ Centre. They can give you advice about what you need to put in place to make decisions about social care support for someone else.

You can search for your local Independent Support Organisation using the Find Help search tool.

You can find details of your local Carers’ Centre here.