A range of reasons can affect a person’s ability to make important decisions about their finances, health and personal welfare, whether it is down to a long-term condition, health deterioration or unexpected change of circumstances. Close family members or friends may then need to act on their behalf – making decisions to safeguard their interests and welfare.
This issue can affect many people and families. For example, disabilities such as dementia, brain injury or severe mental illness may limit someone’s capacity to understand and appreciate what is involved in decision-making. Or people with a physical condition, such as a stroke or severe hearing impairment, may lack the capacity to communicate their decisions and need someone else to act for them.
The Adults with Incapacity (Scotland) Act 2000 provides a range of options to help those (aged 16 and over) who are or may become incapable of looking after their own welfare or financial affairs. There are different routes to allow others to act or make decisions on their behalf. Some would need to be set up while the individual still has capacity to give informed consent, such as a joint bank account or financial and welfare Powers of Attorney. Others include:
- Access to funds – this is a simple way of managing the day-to-day funds of someone who lacks capacity to do so by applying to the Office of the Public Guardian (OPG)
- Financial and welfare guardianships and intervention orders
Guardianship is a court appointment that authorises one or two people (although it can be more) to take action or make decisions on an ongoing basis on behalf of an adult with incapacity. It can cover dealing with that adult’s property matters, financial affairs or personal welfare, or a combination of these. The appointment is usually for three years and the guardian can be a private individual, such as a family member or friend, or someone acting in a professional capacity, such as a solicitor.
Before applying to the court for guardianship, you must have a report from the local authority agreeing that you are a suitable candidate to be the incapacitated adult’s guardian and medical reports from the individual's doctor and psychiatrist on their incapacity.
How can Thorntons help?
We can handle all of the process for you, from drafting the application and arranging for the reports through to lodging the application, and then helping you deal with the ongoing guardianship compliance.
We can also advise on Powers of Attorney options, and set up an arrangement that best serves your particular needs.