Adult Incapacity Law
- General information
- We have extensive experience in assisting clients with matters relating to adult incapacity. The relevant legislation is established by the Adults with Incapacity Act 2000. Further information on this aspect can be obtained from the website of the
Office of the Public Guardian (OPG): www.publicguardian-scotland.gov.uk/
We can provide advice on the following:-
- Powers of Attorney
- We recommend that clients execute and register a Continuing & Welfare Power of Attorney in favour of one or more close relatives or friends. Although there may be no immediate need for the appointed attorney to act, it serves as a precautionary measure and is in place if, for example, the granter should be unexpectedly incapacitated as a result of sudden illness or an accident. Once incapacity is established, it is no longer possible to appoint an attorney and it may therefore be necessary to apply for one or more of the following.
- Access to Funds Orders
- This procedure allows an individual, a local authority or another organisation to apply for authority to access and manage the funds belonging to an incapable adult. The scheme would be suitable when the adult's financial affairs are simple, e.g. paying for the adult's day to day expenses such as gas, electricity, clothes, toiletries, food etc. It can also be used to request a lump sum to pay off any existing debts or to purchase specific items required by the adult.
- Intervention Orders
- This is a court appointment which authorises a person to act and take a one-off action or make decisions on behalf of an adult with incapacity. Anyone with an interest can make an application for an intervention order. The order allows the person appointed to do certain once-only things such as signing legal documents or to sell the adult's house or sign forms agreeing where someone can live. The order lasts until the action specified in the order has been carried out. If powers are needed on an ongoing basis, a guardianship order may be more appropriate.
- Guardianship Orders
- This is a court appointment which authorises a person to act and make decisions on behalf of an adult with incapacity. Anyone with an interest can make an application for a guardianship order. Guardianship is likely to be more suitable when decisions need to be taken on an ongoing basis. The court must be assured that the appointment will benefit the adult and is appropriate under the circumstances. The application will include a list of the powers you need to allow you to look after the adult's affairs. Powers can be requested to deal with the adult's property and/or financial affairs and/or to make decisions about their personal welfare. Based on the adult's condition and circumstances, the Sheriff will decide how long the order should last. It is usual for orders to be granted for a period of 3 years; however it might be granted for a longer period of time or indeed for the lifetime of the adult. The application process is complex and medical reports must be obtained and submitted to the court.
For children who are about to reach the age of 16, a guardianship order can be applied for up to three months before their 15th birthday. This means that the order will take effect on their 15th birthday.
- For more Information
- If you require advice, or more information, please Contact Us