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We live with an increasingly aging population.  This means that many families are having to deal with assisting elderly relatives who are no longer able to manage their own affairs.  Many younger people also have vulnerabilities which mean they are unable to manage their affairs.  The Adult with Incapacity (Scotland) Act 2000 provides a framework for the support of people over sixteen who are unable to manage their personal welfare and/or financial matters.

If a person does have capacity, they can grant another person power over their financial and/or personal welfare by way of a document known as a Power of Attorney.  That document gives the attorney powers to make decisions regarding that person’s welfare and financial matters when they are no longer able to do so.  It is however often the case that a Power of Attorney cannot be drawn up as the person either never had or has already lost the capacity to put such a document in place.  In that situation, another person may be appointed as the Adult’s guardian with powers to make decisions on their behalf.  We can give advice as to both Powers of Attorney and Guardianship Applications. 

In the case of a Guardianship Application, an application has to be made to the Sheriff Court in which the Adult normally lives. Such an application can be made by one person acting as sole Guardian, or more than one acting as Joint Guardians. Children of elderly parents will often wish to work together so that the responsibility of caring is shared between them. Similarly, parents of vulnerable younger people will wish to be appointed as Joint Guardians to ensure that there is always someone available to make decisions should this be necessary.  Many people are concerned that there will be substantial legal costs incurred in making such an application. However, where applicants are seeking either only welfare powers or a combination of welfare and financial powers, Legal Aid is normally available to cover legal costs. We can where appropriate make application for legal aid on your behalf, ensure that all the necessary preparatory work is done prior to lodging the Application in Court and thereafter advice and assist you in the Court process.  We understand that the prospect of any court proceedings can be daunting, especially when the necessity to make such an Application can come on the back of a traumatic experience, such as a loved one being admitted to hospital.  Our aim however is to assist and guide you through the whole process.  Our solicitors are exceptionally experienced in dealing with these matters and undertake all necessary work on your behalf. We will intimate your intention to seek appointment as Guardian to the local authority to enable a Mental Officer to be appointed where this is necessary. We will thereafter liaise with the MHO and attend to obtaining the medical reports required by the court. After the court has accepted the Application, we will ensure that it is served on all interested parties and that the papers are returned to the court to enable the case to be dealt with as quickly as possible. We will arrange attendance at court when the case calls before the Sheriff and are routinely able to deal with such cases without requiring our clients to ever have to attend Court themselves.

Following upon your appointment as Guardian, there may be matters arising from the administration of your loved one’s estate with which we can assist. For example, if the Adult is no longer able to reside in their own home, it may require to be sold to free up funds to help pay for their care. We can attend to matters such as registering the Guardian’s interest in the Land Register, liaising with the Office of the Public Guardian and undertaking any necessary conveyancing work. We are always happy to provide Guardians with whatever support we can in relation to such matters.

Appointment as Guardian is normally time-limited and can be renewed on the expiry of the appointment. The usual length of time for a first appointment is 3 years. Where the Adult involved is an older person and their circumstances are unlikely to change, we will normally ask the court to grant a longer period to avoid our clients having to make multiple applications to renew over time. Whatever period of appointment is granted, we are able to assist in the renewal process when this is necessary   

We understand that your priority is the care of your loved one and we aim to deal with all the legal aspects of the process on your behalf freeing you to concentrate on your loved one’s care. 

For advice on Adults with Incapacity, Contact David Doig in Glasgow

We can assist with making such applications to court and are happy to do so under the Scottish Legal Aid Board Civil Legal Aid Scheme where this is available. To speak to one of the top family lawyers in Glasgow, contact us on 0141 530 1360.

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