Adults with Incapacity

Supported Decision Making (pdf) - the adult should be supported to make decisions about their own lives, as far as they are able.

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Financial Measures

An application can be made to the Office of the Public Guardian (Scotland) to access funds that the adult may have in different bank accounts.

Access to Funds - from Office of the Public Guardian.

There are a range of measures that can support an adult who lacks capacity to manage their finances and property affairs. The type of intervention required is dependent on the amount of money/capital the adult has, and whether they own any property. 

Depending on the adult’s level of need, they may be able to be supported to manage their money, pay their bills, and purchase groceries without the need for any legal or formal intervention. 

Where more formal measures are required, the following information provides details of what steps can be taken to support an adult who lacks capacity to manage their finances. 

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Department for Work and Pensions (DWP) Appointee is the first formal level of support, which can be a specified person, for example, a partner, friend or relative.

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Where there is no-one able or suitable to become DWP appointee for an adult, and/or the adult is a patient in hospital, NHS Highland can apply to become a Corporate Appointee of the patient’s/adult’s DWP benefits.

Once granted, this only permits the management of monies deriving from state benefits. Any other capital or savings requires legal authority using the Act.

A Power of Attorney is a legal document that is registered with the Office of the Public Guardian (Scotland).  A Power of Attorney is granted by the adult while they retain capacity to appoint a proxy to act on their behalf, should they lose capacity in the future to make decisions for themselves, in relation to welfare and/or financial matters (Continuing Attorney).  The Power of Attorney document should state how incapacity will be determined.  This is commonly an assessment of capacity undertaken by a medical practitioner.

Continuing Attorney powers can be active from the point of registration with the Office of the Public Guardian.

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An Intervention Order can provide legal authority to undertake one-off actions in relation welfare, property or financial matters. 

For example, to:

• investigate finances
• terminate a tenancy
• sign a new tenancy or residency agreement
• pay outstanding debts
• set up or cancel direct debits and standing orders, to pay utility bills

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A Guardianship Order can provide the legal authority to manage the welfare and/or the financial affairs of an adult who lacks the capacity to do this for themselves.  An application for guardianship can be sought by anyone with an interest in the adult, usually a family member(s), partner or friend.  Where there is no one able or willing to make an application, and there is a need for legal measures to be put in place, the Local Authority has a duty to make an application.