The Adults with Incapacity (Scotland) Act 2000 (the AWI Act) provides a legal framework safeguarding the financial and welfare affairs of those who require assistance due to lack of mental capacity by allowing an individual to plan for their future and appoint someone to act on their behalf when they may lack the capacity to do so themselves. The AWI Act also provides guidance for those assisting the adult.
The AWI Act is currently under review and the Scottish Government carried out a consultation in 2024. The consultation focused on the modernisation of the AWI Act by improving access to justice, placing the adult’s needs at the centre of the Act’s focus, and ensuring the rights of the adult are respected at all times. It also looked at how to improve the practical application of the AWI Act and ensuring compliance of Scots law with the UN Convention on the Rights of Persons with Disabilities.
There are many factors that can impair an adult’s capacity including degenerative diseases such as Dementia which can have a significant impact on the capacity, behaviour, and overall ability of an affected individual. Due to the unpredictability of the disease, we can find ourselves relying heavily on our closest family and friends to assist with financial matters and decisions regarding our health and wellbeing, and it is often assumed our spouse or other family members automatically have the right to do so. This is not the case, and since we do not know what lies around the corner, it is important to prepare as best we can.
The AWI Act allows for the granting of Powers of Attorney (PoA) which is a document granted by you appointing your chosen ‘attorneys’ the power to manage your continuing (financial, including property) and welfare (such as health care) affairs on your behalf if you become incapable of doing so yourself. A Combined Continuing and Welfare PoA deals with both Continuing and Welfare powers within the one document.
PoAs are often compared to insurance policies – something you hope you never need to use, but which provide a safety net you are grateful to have if the unexpected happens. Just like insurance policies, it is often cheaper, easier and less stressful to have a PoA put in place before it is needed. By granting a PoA, you retain control over who will assist you with your finances and who you entrust to make those difficult decisions about your wellbeing and healthcare.
Once capacity is questioned, or if there has been a diagnosis of a degenerative disease, it can become more difficult to have a PoA prepared with potential for additional capacity reports being requested. Where the adult is deemed to have no capacity, it is too late to grant a PoA and the individual seeking to assist the adults with their financial and welfare affairs will have to petition a local Sheriff Court for a Guardianship. This is a much lengthier process with considerably higher costs at what is already an emotionally challenging time causing more stress for your loved ones and no action being taken until the guardianship is in place.
It is, therefore, never too early to implement a PoA, and if you would like to speak to someone for more information, please contact our private client team which has an extensive range of experience and knowledge in estate planning and succession matters. Early planning helps to avoid litigation, but should they be needed, our colleagues in the Dispute Resolution and Litigation team are available to assist.
Published 24 June 2025
