What do you know about legal capacity, Guardianships & 'Power of Attorney' In Scotland, a person is deemed to have legal capacity to act and make decisions on their own behalf once they reach the age of 16. This means that parents no longer have any authority to make decisions or deal with agencies on their son or daughter's behalf once they turn 16.
Why is legal capacity important?
For most people, taking on responsibility for their own decisions and actions at age 16 is not an issue and is simply part of the transition from childhood to adulthood. However, problems can arise where an adult is not in a position to be acting or making decisions on their own behalf. This could be:-
- as a result of a lifelong condition, e.g. severe learning disabilities; or
- as a result of accident/illness, e.g. a serious head injury.
In these circumstances, parents often liaise with agencies on their child's behalf, e.g. care providers, the local Social Work department or the Department of Work and Pensions (DWP). Once a child reaches the age of 16, these agencies will no longer deal with parents and wish to speak with their son/daughter direct. However, the son or daughter is unlikely to be able deal with these matters on their own behalf.
What legal options are available?
Once someone turns 16, no one has legal authority to act on their behalf unless they have been legally appointed to do so. This appointment can either be by:-
- Power of Attorney (POA) - a legal document signed by the adult appointing someone to act for and make decisions on their behalf. Powers of Attorney are only appropriate where the person granting the deed is capable of understanding and explaining his wishes. Click here for more information.
- Guardianship order - a court order appointing someone else to act on an adult's behalf in relation to financial and/or welfare matters. Guardianship is only appropriate in circumstances where a person does not have capacity to make decisions on his own behalf and no one else has legal authority to act for him. Click here for more information.
What do I need to do?
At TC Young, we have a wealth of experience in assisting parents and carers with applications for guardianship and with queries regarding Powers of Attorney. If you, or someone you know, wish more information on the options available to you, get in touch.