Adults with Incapacity


The law in Scotland presumes all adults are able to make decisions for themselves - they are deemed to have "legal capacity". However sometimes adults cannot make decisions for themselves - usually because of illness or perhaps because they have reached adulthood with some form of mental impairment. Where an adult cannot make decisions that adult has lost legal capacity.

Incapacity can be anticipated and dealt with before the incapacity arises. This involves the adult granting a power of attorney in favour of a trusted person - authorising that trusted person to make decisions on the adult's behalf if capacity is lost.

If incapacity happens with no power of attorney in place, a court action is needed to have someone appointed as a guardian. That person will then have the court's authority to act on behalf of the person who has lost capacity.

The law around incapacity is complex and detailed. Our solicitors and staff are very experienced in dealing with all the issues arising from incapacity, whether it be preparing powers of attorney or raising and completing court actions. In most court actions some legal aid may be available.

In order to be able to access Legal Aid funding you have to instruct a solicitor who offers it. Not all do for all work incurred - some pick and choose - so it’s best to check before you proceed as it will cost more if you can’t access Legal Aid.

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