Incapacity Law

Incapacity law in Scotland protects adults aged 16 or over who are unable to make certain decisions for themselves. This can happen because of illness, disability, injury, dementia, or another condition affecting decision-making. The law allows trusted people to step in where necessary, while keeping the adult's wishes, dignity, and independence at the centre of any decision.

Any step taken must benefit the adult and should only go as far as is needed. The adult's own wishes and feelings should be taken into account where possible, along with the views of close family members, carers, and others involved in their welfare. The aim is to give practical support without removing more independence than necessary.

Power of Attorney

A Power of Attorney is a legal document which lets you choose someone you trust to make decisions or act for you if you need help now or in the future. It can cover financial and property matters, welfare and care decisions, or both. It is signed and witnessed, and it gives your chosen attorney legal authority to act on your behalf.

You can only grant a Power of Attorney if you have the capacity to understand what you are doing. It is therefore sensible to put one in place before there is any significant concern about capacity. You remain in control of who you appoint and what powers they should have.

A Power of Attorney can usually be used until it is recalled or until a court order, such as a Guardianship Order, replaces it. For many people, it is the simplest and least restrictive way to make sure trusted people can help if decision-making becomes difficult in the future.

Guardianship Orders

A Guardianship Order is granted by the sheriff court. It may be needed when an adult no longer has capacity to make decisions and there is no suitable Power of Attorney in place. Applications normally require medical evidence and reports explaining why the order is necessary, suitable, and proportionate.

Incapacity can arise for many reasons, including brain injury, learning disability, Alzheimer's disease, dementia, or another illness affecting decision-making. The medical reports lodged with the application will address the adult's particular circumstances.

A Guardianship Order can give authority to make decisions about care, accommodation, health, welfare, money, property, or day-to-day financial matters. The powers requested should be tailored to the adult's needs.

The court will consider whether the proposed powers are needed, whether they will benefit the adult, and whether the same protection could be achieved in a less restrictive way.

Intervention Orders

An Intervention Order may be suitable where one specific decision or one-off action is needed for an adult who lacks capacity. This might include selling property, accessing funds, signing documents, or making a particular welfare decision.

The application is made to the court, and the order should be limited to the particular matter that needs to be dealt with. It may be appropriate where ongoing powers are not required, but formal legal authority is still needed to protect the adult's interests.

If you are unsure whether a Power of Attorney, Guardianship Order, or Intervention Order is the right option, we can explain the choices available and guide you through the next steps.