This article by Sandy Lamb, Partner in our Private Client team, featured in the latest issue of Scottish Policy Now.
The regression of a healthy person into a state of incapacity is one of the most emotionally difficult circumstances they and their families will ever face. For those around them, in particular, the mental strain of having to make the right decision by their loved one is often severe, not to mention the financial pressure which often goes hand-in-hand.
The Adults with Incapacity (Scotland) Act 2000 (the AWI Act) provides a framework for those who require assistance due to lack of mental capacity and those who seek to intervene in the affairs of those who have impaired capacity. The law is there to help protect the person in question, and to guide the decision-making process of those responsible for helping them.
The Scottish Government is consulting on various amendments to the AWI Act, particularly in relation to ensuring smoother administration of guardianships and ensuring compliance of Scots law with the UN Convention on the Rights of Persons with Disabilities.
These sometimes complex legal issues often come precisely at the time you don’t want them. The granting of a Power of Attorney (PoA) is more difficult, and emotionally draining when it is done during the time of potential incapacity.
As with many areas of law, it is easier, cheaper and less stressful to plan ahead. It is best to think of the process as something akin to house insurance - something you hope you never need to use, but are grateful to have if something goes wrong.
For those with the capacity to grant PoAs and the luxury of time, private client lawyers can ensure the right people, whether that be family, friends or professionals are appointed as Attorney, with the right powers to do the job.
Where no PoA is in place and capacity is in question, anyone wishing to intervene in the affairs of an adult with incapacity will have to petition a local Sheriff Court to be appointed as “Guardian” or “Intervener”. At that point, a litigation lawyer deals with the court process for such appointments.
So, planning is key. Private Client lawyers like me advise clients on estate planning and succession, and a core element of that involves advising on the granting of Powers of Attorney and planning for potential incapacity.
We encourage forward planning to avoid litigation, and we ensure that our colleagues in the Dispute Resolution and Litigation team, are there should they be needed to appear in court for Attorneys and Guardians.
In this respect, we welcome the Scottish Government’s move to reform such an important area of law, in particular the move to clarify the AWI law where restrictions on the liberty of those with incapacity is deemed to be necessary. Being able to plan appropriately via welfare powers in a PoA is essential.
We welcome the proposal to move to a more flexible approach to “graded” guardianships, subject to ensuring that proportionate and effective oversight and scrutiny is not compromised. Any move to streamline the presently lengthy, complex and expensive guardianship process is to be welcomed.
Being, or caring for, an adult with incapacity is a trying period of life. The law, and lawyers, are there to smooth that process as far as possible.