Managing compensation for Cerebral Palsy

 

When your child receives compensation for cerebral palsy caused by medical negligence, knowing what to do with that compensation can be difficult. Our team are here to help ensure you can manage the compensation effectively and in the knowledge that your child’s needs can be met now and in the future.

There are two processes that can be considered to manage the compensation and they depend on whether your child will have capacity at the age of 18 or not: 

  1. If your child retains mental capacity but remains vulnerable then we can help you create a personal injury trust to hold and manage the compensation.
  2. If your child does not have capacity to manage the award then an application can be made to the Court of Protection (the “Court”) to appoint a deputy to make financial decisions in your child’s best interests.

If the answer regarding mental capacity is not clear then under the Mental Capacity Act 2005 capacity is presumed unless proven otherwise i.e. money is placed into a Personal Injury Trust and transferred to a Deputyship later if need be.

Dealing with these issues can be confusing and emotionally challenging, so our team of legal experts take an empathetic and practical approach and will answer all of your questions in plain English, giving you the confidence that you are making the right decisions.

Personal Injury Trusts

Personal injury trusts are a type of financial arrangement into which you can place compensation. They have various advantages, including appointing ‘trustees’ to manage the funds and making sure that your child does not lose their entitlement to any means-tested benefits.

When is a personal injury trust needed?

Placing compensation into a personal injury trust can be a good option if you are:

  • An adult with cerebral palsy who is able to manage your own financial affairs
  • The parent of a child with cerebral palsy who it is believed will be able to manage their own financial affairs once they turn 18

We will be happy to advise you on whether a personal injury trust is an appropriate way to manage your compensation and all of the legal issues you need to consider and deal with.

How do personal injury trusts work?

Exactly how a trust works will depend on how the document that establishes the trust is written. This document is known as a ‘trust deed’. The trust is usually set up to last for the lifetime of the person with cerebral palsy (known as the “beneficiary”) but the beneficiary will have the option of bringing it to an end when they reach 18 or any time after this if they wish to manage their funds directly and outside of the trust.

A trust will normally have two or more trustees who are in charge of managing the funds. The trustees can be anyone over the age of 18, but will typically be the parents or other close family members of the beneficiary. If there are substantial funds involved then it is usual to also have a solicitor act as a professional trustee to ensure the trust is managed effectively and in accordance with all of the relevant rules and regulations.

How can Boyes Turner help with personal injury trusts?

Our team can help you in various ways including:

  • Setting up the trust
  • Providing independent, unbiased advice for trustees and beneficiaries
  • Acting as professional trustees

We can ensure the trust is set up and managed in the right way to provide a long-term income to meet ongoing needs. In addition, if the money is from an award for personal injury it should not be taken into account when assessing means-tested state benefits if placed within a trust. We can provide further advice on this.

Court of Protection Deputyships

If your child has received compensation and they have been assessed as being unlikely to have mental capacity to manage their own financial affairs once they turn 18 then you will need to apply to the Court of Protection for the appointment of a deputy.

Once appointed the deputy has the legal authority to make decisions about how finances are managed. A separate Order may be requested to cover decisions about their health and welfare.

As the money is from an award for personal injury it should not be taken into account when assessing means-tested state benefits if placed under the control of a deputy.

When is a deputy needed?

A deputy is needed as soon as an interim payment is received as the funds will need to be managed.  Your child may still be under 18 but a deputy can be appointed even if your child is a minor if it can be shown that your child is unlikely to be able to manage a significant sum of money when they reach the age of 18.

We can advise on the application to appoint a deputy to guide you through the process and help with any additional applications to the Court of Protection e.g. for making a Statutory Will.

How does deputyship work?

There are two types of deputyship you can apply to the Court of Protection for:

Property & Financial Affairs Deputyship

This allows a deputy to manage a person’s finances, including any compensation they have received.

Personal Welfare Deputyship

This allows you to make decisions about someone’s medical treatment and how they are looked after. Please be aware that it can be challenging to obtain this type of deputyship order as the court prefer health decisions to be made on a best interest basis by those involved in your child’s care or by applying to the court for an order covering a one-off event such as an operation.

Under each type of Order the Court will decide exactly what decisions the deputy has authority to make depending on what was requested in the initial application and what they believe is appropriate. It is therefore essential to take legal advice when applying to ensure you can secure the authority for the deputy to make all of the necessary decisions to support your child.

When a deputy is appointed, there are various ongoing legal obligations that will need to be met, including providing annual accounts to the Court and putting a security bond in place.

How can Boyes Turner help with deputyship?

Our team can help you with every aspect of deputyship including:

  • Applying to become a deputy whether it be to appoint a parent or a solicitor or both
  • Carrying out your duties as a deputy (including the legal requirement for annual accounting to the Court) A full list of these duties can be found here
  • Additional applications to the Court in relation to specific issues (such as buying and selling property, and creating or modifying Statutory Wills)

Our highly experienced solicitors can help to ensure you are able to support your child and see that their compensation is used appropriately to meet their needs.

How we can help you manage your compensation

Our team are specialists in their field, advising clients in managing compensation for all types of personal injury and medical negligence claims, including cerebral palsy claims. We are ranked for our Court of Protection work by top client guide the Legal 500, reflecting our leading expertise in this complex area of law.

We can advise you on every aspect of managing compensation, including how to use the money in the best interests of your child to ensure their needs are met as well as how to invest compensation to provide long-term security.

What should compensation be used for?

Ultimately, compensation should be used in the best interests of your child to support them where necessary.

Specifically, compensation can be used to cover:

  • Care support
  • Therapy
  • Property (including buying a home and/or making home adaptions)
  • Specialist equipment
  • Buying or adapting a car or other vehicles

Children with cerebral palsy often need various types of therapy, some of which may be available on the NHS, but often private therapy is also needed. This may be because specific types of therapy may not be available on the NHS or waiting times are too long.

Compensation can be used to fund therapeutic options including:

Physiotherapy:

Including exercises and stretching to help encourage and improve movement.

Speech & language therapy:

Including exercises to improve articulation, fluency, pitch and volume control, as well as sign language where appropriate.

Occupational therapy:

Helping children to develop skills and strategies to carry out everyday tasks to improve their independence.

Assistive technology support:

Including training in the use of technology such as eye gaze communication aids.

How should compensation be invested?

There are various ways to invest compensation to ensure you are able to achieve a secure long-term income that will be sufficient to meet your child’s needs.

Investment options include:

  • Stocks & shares
  • National Savings or Premium Savings Bonds
  • Bank accounts
  • Property

We use our professional contacts to obtain independent and impartial investment advice. We can help you to create a bespoke investment portfolio tailored to your child’s needs, making sure the investment strategy is discussed fully with you at every stage and that you have access to all the appropriate advice and support you need.

Knowledgeable, organised, responsive, diligent, empathetic and human. I deal with many legal firms during the course of my work and have found the Court of Protection team at Boyes Turner to be, 'Simply the best'.

INDEPENDENT CASE MANAGER

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