Adults with Incapacity

Adults with Incapacity

Caring for those who have already lost capacity

Anyone of any age can lose capacity because of an accident or a medical condition. It may be that they need help with making one off decisions or they may need help on an ongoing basis. Some people have fluctuating conditions and need help only some of the time. Whatever the reason, help is at hand.

We recognise that managing the affairs of someone with incapacity can be a complex and stressful time that’s why Stuart & Stuart’s advice process is designed to provide practical support and solutions to address the needs of the vulnerable adult.

The Adults with Incapacity Act

The Act provides a framework for safeguarding the welfare and managing the finances of adults who lack capacity. The aim is to protect individuals who lack capacity to make particular decisions and to support their participation in making decision about their own lives.

When someone is assess as lacking capacity for specific decisions, the Act allows someone else to be appointed by the Court to make the decisions on their behalf.

Young Adults with Incapacity

Once a child reaches the age of 16, in Scotland they are considered to be an Adult. On this basis, no one can make financial or welfare decisions on their behalf unless they have already been appointed as an Attorney or have been granted Guardianship from the Court.

Already lost capacity and I don’t have a Power of Attorney?

If a relative or friend can no longer make decisions for themselves, an application can be made to the court for another person to be appointed as their guardian. This can be done on a continuing basis or in order for a specific task to be undertaken.

A family member or friend can apply to the court for an intervention or guardianship order for financial matters, welfare matters or both. An intervener can be appointed when someone needs authority for a one off action or to make a number of decisions. For example, selling a home or deciding what medical treatment is best for that person at a particular time.

A guardian can be appointed when there are several issues to be dealt with and decisions will need to be made to manage someone’s affairs on an ongoing and regular basis.

Who can be appointed?

Any person, including a professional person can be authorised under an intervention order. Someone, such as a family member who has an interest in the adult’s affairs may make an application to the court for an intervention or guardianship order. If there is no one willing to be appointed and guardianship is necessary to safeguard an adult’s personal welfare, then the Chief Social Work Officer of the Local Authority must be appointed.

Is there a straight forward way to access funds?

Individuals, normally relatives or carers can apply to the Office of the Public Guardian to gain access to funds of an adult with incapacity in order to meet day to day living costs. This allows the individual to access funds which may be in the sole name of the adult. This part of the Adults with Incapacity Act was designed to be used by a carer, relative or friend, however others with a genuine interest can apply (but not local authority staff such as a social worker)

Legal Aid for Legal Guardianship

Legal Aid can potentially save you thousands of pounds, however there is certain criteria for qualifying for this help. If you are applying for a Welfare Guardianship then the individual would normally qualify. Stuart & Stuart recognise that the costs involved for clients can sometimes be prohibitive and are therefore please to offer this service through Legal Aid.

To find out if you qualify please call us for an informal discussion

If you are applying for Guardianship – consider your own position

Think about your own situation, losing capacity to make decisions happens to people of all ages. Why not take that important step and arrange your own Power of Attorney at the same time.

You can download our information leaflet and even share them with family and friends.

To speak to one of our Solicitors call 0131 222 9975

Or email us at

I need to organise the sale of a house but don’t have a PoA or guardianship can l still help the adult with incapacity?

Yes, you can apply to the court for an intervention order for a specific reason without taking on responsibility of managing that persons affairs on an ongoing basis.

My Father suffers from dementia. I can’t deal with his bank or pension company as they will only speak to him. The doctors have said he is unfit to deal with day to day things. What can I do?

You can instruct your Solicitor to apply to the Sheriff Court for an order for Guardianship.

How long does it take to get Guardianship?

All going well, it can take between 6 and 9 months.

Is it expensive?

It can cost around £4000 but if there is a welfare component, Legal Aid would be available. Also you have to bear in mind that the Legal Aid is based on the incapacitated Adults income and capital, not on your financial position.

How can I avoid having to seek Guardianship?

Make a Power of Attorney.

Jane Gisoldo, solicitor in Edinburgh, works at Stuart and Stuart solicitors
Stuart & Stuart solicitors Edinburgh-contact


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