Legal Guardianship for Adults with Incapacity

The issue of adult incapacity can, sooner or later, affect most of our families. Incapacity can be caused by either a physical disability or a mental disorder and means that an adult is incapable of making decisions for themselves, communicating decisions, understanding decisions or indeed retaining memory of decisions.

Capacity is not an "all or nothing" condition. It may be that an adult is capable of operating their day-to-day finances but may need assistance with larger decisions or transactions.

The Adults With Incapacity (Scotland) Act 2000 which came in to force in April 2002 introduced entirely new procedures to regulate the intervention of others in the affairs of adults without legal capacity. Any steps taken under this Act must be done in accordance with the following principles:

• There should be no intervention in the adult's affairs unless that intervention is necessary and benefits the adult.


• The intervention sought must be the least restrictive option in relation to the freedom of the adult.


• Account should be taken of the present and past wishes and feelings of the adult as well as the views of the nearest relative and primary carer of the adult in so far as it is possible to do so.

Where an adult has lost capacity and has not made anticipatory provision formal steps do normally require to be taken in terms of this Act. An application is made to Court specifying the various sorts of orders sought. This can be restricted to either financial issues or welfare issues or can cover both.

Formal reports from doctors and either family or friends of the adult need to be produced. The court must be satisfied that the general principles of the Act have been considered and that the orders are better for the adult and necessary in the circumstances. The hearings in court are held in private. The court sometimes calls for further independent reports to check that the application is in order.

Q: What, if anything, can you do to provide for any future impairment of your own capacity?

A: A continuing power of attorney in favour of a trusted younger relative or friend can be put in place at any time. This would endure even if you lose legal capacity in the future and will normally avoid the need for an application to be made to court.

A: Finances can be simplified so that matters can be run with very little input if incapacity is anticipated for example an elderly adult's bank account could be made joint with a trusted younger relative or friend.