Adults with Incapacity
Protecting Rights, Preserving Autonomy
By law, if an adult is unable to make key decisions or take necessary actions to safeguard their own welfare, a court can appoint a 'welfare guardian' to do this for them. Welfare guardians can make decisions about where a person lives, as well as about their personal and medical care. The welfare guardian might be a relative, friend or a carer. The court can also appoint the chief social work officer of a local authority to be a person's welfare guardian. The law that sets out the role and responsibilities of guardians is the Adults with Incapacity Act (Scotland) 2000.
A guardianship order is a court order which gives a person the authority to act on behalf of an adult with incapacity and safeguard and promote their interests. The adult must be over 16 and incapable of acting or making decisions for themselves. Such an order is appropriate when decisions regarding an adult with incapacity need to be made on an on-going basis. The sheriff will decide on the length of the order after considering the condition and circumstances of the adult. It is common for an order to be granted for three years however this time period may be extended and in certain circumstances may last the rest of the adult’s life.
Guardianship Reviews and Renewals
The court order will detail the length of appointment as guardian. A renewal of appointment can be made by making an application to the sheriff court, however you should seek legal advice before doing so. If you still need guardianship powers it is important that you make your re-application to court before the original order expires. In doing so it means that you will be able to keep acting while the application is being considered. Your renewal application must be accompanied by at least 1 medical report, a report from the local authority where there are welfare powers and / or a report from the Public Guardian where there are financial powers.
Power of Attorney
A power of attorney is a way of giving someone else permission to make decisions about your money and property as well as your health and personal welfare. It usually sets out what you would want to happen in the future if you could no longer look after your own affairs. In some circumstances you can choose for it to start immediately. As a power of attorney gives legal authority for someone else to act on your behalf, it is important to take advice from a solicitor.