Adult son with LD and his money

Flakie

I have an adult son with autism and LD who isn’t able to manage his own affairs so I generally do that. He still lives at home with us. He gets PIP (enhanced rate) and income based ESA. I am his appointee but we don’t have a deputyship or any other method in place. His benefits are paid into a joint current account with me as the main account holder (has been for years) and I basically administer it. We take ‘housekeeping’ of £600 per month from him which covers all food, toiletries, utilities, petrol costs and so on and he pays for his clothes and other sundries separately. He has an ISA with about £10,000 in it built up over the years but that’s all declared and his total funds do not exceed £16000. 

So far does all this sound reasonable to you!
my main question is this - we (his dad and I) own two cars one of which was a small Corsa and the other a Qashqai. Our son was finding it difficult to get in and out of the Corsa as he’s a big lad and had to use it sometimes as my husband uses the other car for various things himself. We decided to upgrade the smaller car and bought another Qashqai (not new) so we could accommodate our son at all times with a more comfortable ride. He’s in the car a lot for outings and day service runs several days a week. Would it be reasonable for our son to contribute an amount from his ISA towards the cost of the newer car as it was bought with his needs in mind? Or might it be looked at as deprivation of assets? I don’t want to fall foul of the system. Thanks for reading. 

elsien

If he doesn’t have financial capacity around his money then from a legal point of view, you can’t access the ISA without a deputyship or power of attorney because you would be asking him to sign a piece of paper that he didn’t understand to pass money over to you. Without having a clue how much money he’s giving you or what that leaves him.

Albermarle

elsien said:

If he doesn’t have financial capacity around his money then from a legal point of view, you can’t access the ISA without a deputyship or power of attorney because you would be asking him to sign a piece of paper that he didn’t understand to pass money over to you. Without having a clue how much money he’s giving you or what that leaves him.

One issue here is that you can not get PoA for an adult with learning disabilities, as they will presumably not understand enough to sign the donor form.
Getting a deputyship is nowadays very difficult for welfare matters. The idea being everything is done via 'best interests'. I am not sure if this also applies for deputyship for finances, I think that may be easier. 

OP - How did he open the ISA in the first place? I know being a DWP appointee is fine for handling benefit payments etc. but I am never sure how far this extends to other financial matters.

elsien

Not necessarily. People can lack capacity around big financial decisions but still be able to make a power-of-attorney.

The appointee role is to manage benefits. It doesn’t give the authority to go into bank accounts or other financial provision. 

There is also the possibility that a bank could choose to close a joint current account If one party doesn’t have capacity to manage it because from a purely legal perspective, they are not able to monitor what is happening with the account. 

I have been working with a lady with  a learning disability in supported living. She did not have enough money to make a deputyship worthwhile, but she did need direct debits to pay bills for her tenancy. The court of protection authorised the tenancy and also that the appointee could set up a bank account and direct debits on her behalf. 

Albermarle

elsien said:

Not necessarily. People can lack capacity around big financial decisions but still be able to make a power-of-attorney. OK I suppose it varies from individual to individual, and how severe the learning disability is.

The appointee role is to manage benefits. It doesn’t give the authority to go into bank accounts or other financial provision. Although the appointee can open a bank account specifically to deal with the benefits.

There is also the possibility that a bank could choose to close a joint current account If one party doesn’t have capacity to manage it because from a purely legal perspective, they are not able to monitor what is happening with the account. 

I have been working with a lady with  a learning disability in supported living. She did not have enough money to make a deputyship worthwhile, but she did need direct debits to pay bills for her tenancy. The court of protection authorised the tenancy and also that the appointee could set up a bank account and direct debits on her behalf. 

As already asked, the question seems to be how was the ISA opened in the first place as the I stands for Individual.

Flakie

Thanks for your replies. I think I was right to think that it wouldn’t be straightforward. As for the ISA I can’t honestly remember how it was opened as it was a long time ago. I vaguely remember going to a local branch of the bank and setting it up. I’ll maybe have to look into it. I suppose because he lives at home and we have sole responsibility for everything to do with him we just assumed we could use his money for his benefit. He’s certainly not short of money so has the best of everything such as technology where appropriate, clothing, lots of treats but maybe now we need to be a bit more mindful. I wish there was an advice line of sorts who could give me the legal view - any ideas? Thanks again. 

theoretica

Does he have a mobility element on his PIP?  If so, this would seem to me as a non-expert to be aligned with the intended use of that money.

elsien

I don’t think anyone is saying you can’t use his money for his benefit. But things change when children become adults and things that you’ve previously done on their behalf tend to have a different legal mechanism because they are now over 18.
If it was a junior ISA or child trust fund, parents have been having problems when their child hits 18 because it can’t be accessed without the deputyship. 

 So just putting it on your radar as something, you probably need to start thinking about for the future. 

Mencap have an advice line. Not used it though, so I’m not sure what it covered.

Flakie

Thanks for all this. I have dug out a load of paperwork that was required when he switched benefits many years ago and I had to obtain years and years worth of bank statements for the DWP. I had also received details of the ISA. It was opened in 2011 and since then has been moved to better ones with better interest rates. I think it was boosted up by some big rebate from the DWP over underpayments and we’ve just added to it from his money ever since. I’m thinking now that we shouldn’t have been able to open it as he lacks capacity and as an appointee that maybe isn’t in my remit. It was only intended to gain him some extra interest and he has never gone above the threshold though there is a small deduction made in his benefits due to the level. Point is, what do I do about it? It was done with good intentions and I thought as appointee it was ok. Should I declare it to someone? 

And to theoretica yes his PIP has a mobility element. 

elsien

If the ISA is in his name then the providers should have checked at the time because it is outside the remit of an appointee but banks back then (and even now sometimes) were not as up to speed on the MCA as they should have been.
Can you open an ISA for someone else? - Rest Less

I am sure from what you have written that you are clearly acting in your sons' best interests. But the systems are as they are because your son can't track what you are doing for him and unfortunately there are family members who do take advantage, so it's intended as a protective measure for him.

And there isn't really anyone for you to declare it to, as such,  more about what you are going to do now?  I think you are likely to need the deputyship for two reasons: firstly to be able to properly manage that amount of money because if/when an ISA provider asks for your legal authority to get money out or to close it, you don't have that. And secondly if anything happens to you then the current account becomes your son's in his sole name and again there is no lawful way to access that on his behalf. 
People can and do slide under the radar with this using online banking and cash cards but it can lead to safeguarding questions or the account being frozen if that comes to light. 

Flakie

Thank you Elsien. That to me is very sound advice. I am going to look into the deputyship thing and get it made official then I won’t need to worry. And I think your comment about the fact that the bank didn’t really do its due diligence at the time and I was ignorant of the implications is a sound one. If anything did happen to me and I was the only deputy would my husband be able to get access? Or would that open up a completely new can of worms?