When a person lacks the capacity to make decisions, someone else has to make it for them. This sounds straightforward enough, except that the person who makes the decision has to have some legal authority to do so. We have the expertise to guide you through the process, whether involving capacity or incapacity.
Unlike children, where their parent can make decisions for them while they are under 16, an adult is entitled and expected to make their own decisions. No-one else has any automatic right to make them, except in things like medical emergencies.
People are living longer and conditions such as dementia are on the increase. An accident, catastrophic injury or other incapacitating illness can strike at any stage. The Adults with Incapacity (Scotland) Act 2000 sets out a framework for allowing someone else to take charge of your affairs.
Powers of Attorney are the mechanism for future decisions and can be granted while you have capacity. In this way, you can make your own choice of who you want to give these powers to.
Guardianship is the route if the capacity to appoint an attorney has been lost. The guardianship application will be made to the court and the sheriff will appoint the appropriate guardian for you, usually the person making the application. The powers can relate to financial matters or welfare matters or both.
We have many years of expertise in guiding clients through the issues which incapacity can bring.
How can we help?
Power of Attorney
A power of attorney can prevent a difficult situation from becoming worse. The attorney has your authority to step in and make sure your bills are paid and that you get the kind of care you need in the right form for you.
Because of the seriousness of granting powers to someone else to use when you may not be able to watch over them yourself, making a power of attorney needs a certain formality. There is, for example, a certificate signed by a solicitor or a doctor to say that they have discussed the document with you and that you have understood its nature and extent and they are satisfied that you are not acting under undue influence.
The continuing or lasting power of attorney over financial matters can be used whenever you want. Welfare powers can only be used if you are no longer able to decide yourself.
Guardians do much the same as attorneys except that they are appointed by the court and they need to report regularly to the Office of the Public Guardian.
Like all court proceedings things have to be done in a certain way. The application explains why the appointment is necessary and is supported by medical certificates and a statement from a third party who knows the circumstances and can say that the proposed guardian is suitable. It also needs to be intimated to other interested parties, including the adult themselves, in case anyone has any objections. The same court process applied to intervention orders.
We have a wide range of experience in making applications for a wide range of powers to allow guardians to assist in the day to day life of the Adult.
We draft the applications, obtain medical reports to support them, appear in court and deal with all legal issues, including where another family member seeks to challenge the guardianship application.
Misuse of Powers
Safeguarding vulnerable adults involves having some way of calling for help if things are not working the way they should. A guardian appointed by the court has to report annually to the Office of the Public Guardian to explain what they have been doing. An attorney, on the other hand, does not. There is therefore a risk that they could misuse their powers. It is easy to see how a person with access to large sums of money could persuade themselves that they have more need of it then their elderly demented parent.
The Public Guardian has powers to step in and ask what the attorney has been doing and ultimately to ask the sheriff to remove them. However, someone needs to bring it to their attention.
We have many years of experience of dealing with some of the most difficult cases and can advise and help our clients and their families where things go wrong.
Adult Incapacity in practice
Every action taken by an attorney or a guardian must be done in accordance with the general principles set out in the Adults with Incapacity (Scotland) Act 2000. The action must provide a benefit to the adult and be the least restrictive option to achieve that benefit. It should be in accordance with the wishes of the adult as currently or previously expressed. It should take account of the wishes of the nearest relative, the principal carer and any other person who claims to have an interest in the affairs of the adult. The incapable adult also needs to be encouraged to use whatever powers they still have.
The big problem is knowing when to step in. A person can be capable some days and not others and be capable of some things and not others. The attorney has to know when it is right to act and when it is not. That is not easy particularly during the early stages of dementia when behaviour can sometimes be unpredictable.
We bring knowledge, expertise, care and compassion to these issues and advise clients through this difficult time.