Adults with Incapacity

Morison and Smith provide expert advice on all aspects of the Adults with Incapacity (Scotland) Act 2000 ("the Act"), which includes powers of attorney, guardianship orders, intervention orders and applications to the Office of the Public Guardian for authority to access funds. It is extremely important for everyone, if they have the mental capacity to do so, to consider granting a power of attorney, which is a document granting powers to another person(s) to act on your behalf in the event that you become incapable of doing so yourself. Some people may never have the capacity to grant a power of attorney, perhaps due to a learning disability or a physical condition which renders him or her incapable of communicating their wishes. Others may lose capacity prior to granting a power of attorney, perhaps through a progressive condition such as dementia or through a brain injury. Many people assume that they can make decisions on behalf of close family members who do not have the capacity to make decisions themselves but the law provides that more formal measures are required to be in place authorising someone else to make those decisions. In the main the formal orders are guardianship orders and intervention orders.

Guardianship

A guardianship order is a court order which gives one or more persons the authority to make decisions on behalf of an adult (someone over 16) who is incapable of making his or her own decisions to safeguard and promote their interests. A guardianship order can grant welfare powers and/or property and financial powers. The powers sought in any application would be determined by the adult’s individual needs. Typically welfare powers will include the power to make decisions about where the adult is to live and what care and treatment they receive. Financial and property powers will typically include power to receive income such as pensions and benefits, pay for goods and services, pay accounts and manage bank accounts. Powers can also be sought to sell property, including a house. The duration of the order will be decided by the court based on the adult’s individual circumstances. In considering any application under the Act, the court will apply the principles set out in section 1 of the Act. In exercising the powers granted by the court, any guardian appointed must also apply these principles to any decision which he or she makes. The section 1 principles are:

• Any action taken must be necessary and must provide benefit to the adult;
• The intervention must be the minimum necessary to achieve the purpose;
• Account must be taken of the adult's present and past wishes and feelings (and every possible means of communicating with the adult must be tried to find out what these are);
• Account must be taken of the views of the adult's nearest relative and primary carer, and of any other person with powers to intervene in the adult's affairs or personal welfare, or with an interest in the adult, so far as it is reasonable and practicable to do so, and
• The adult must be encouraged to use any skills which he or she has

A guardianship order can be sought by anyone who has an interest in the adult, which could be a family member or friend of the adult and, as a last resort, the local authority. The process for obtaining a guardianship order can often be complex. It is therefore recommended that you obtain legal advice from a solicitor who is, like us, experienced in this area. The first stage of the process is to give formal notice to the relevant local authority of your intention to apply to the court to be appointed as guardian and to ask the local authority to appoint a specialist social worker (known as a mental health officer) to make enquiries and prepare a report on the proposed application and on the suitability of the proposed guardian. This report will be submitted to the court with your application and two medical reports confirming incapacity. There are strict rules about how old the reports can be when the application is lodged in court (usually no more than 30 days from the date of the assessment) and we are experienced in co-ordinating the reports to comply with the statutory timescales. The court will consider the application, fix a hearing and order formal intimation of the application to interested parties, including the local authority, the nearest relative and the adult him or herself. At the hearing the court will consider whether the application and accompanying reports meet the relevant legal tests and the application may be granted at the first hearing. Alternatively, if the application is opposed or the court requires further information, another hearing might be fixed. Being appointed guardian is a significant responsibility and we will advise you fully on what this will involve. We can assess whether guardianship is necessary and, if so, identify the powers you will need to have granted to you to allow you to carry out your role effectively. Our professional service does not end once the court process is finalised. We are happy to continue to offer advice and practical guidance to support you in undertaking your role. This includes providing advice on the registration of the order with the Office of the Public Guardian and helping you to prepare the relevant paperwork, including (where appropriate) an application for caution (like an insurance policy), an inventory of estate, a management plan and annual accounts. Welfare guardians are subject to supervision by the local authority and financial guardians by the Office of the Public Guardian.

Intervention Orders

Intervention orders are sought where, unlike with guardianship where there is ongoing management of a person’s affairs, there is a one off or time limited intervention needed into the affairs of an incapable adult. Examples of this would be terminating a tenancy or selling a property. The application process is similar to that of applying for a guardianship order and we can similarly guide you through the process.