If you are a parent of a child who is incapable, usually through mental or physical illness, you may not realise that once the child turns sixteen they are deemed an Adult in terms of the law and you will no longer have legal authority to make decisions on their behalf, even if they are unable to do so them self. It may therefore be necessary to apply to the local Sheriff Court for a Guardianship Order, in order to make key decisions or take necessary actions to safeguard the Adult’s welfare and/or financial affairs.
If you need to make welfare decisions on behalf of the Adult, such as deciding on care and accommodation, medical treatment and involvement in education, work and social activities, a Welfare Guardianship Order will be required.
As a young Adult is unlikely to have significant financial assets, their financial affairs can normally be dealt with under the Access to Funds scheme and/or DWP Appointeeship. The Access to Funds scheme is regulated by the Office of the Public Guardian and allows an appointed individual to operate a nominated bank account in order to meet the Adult’s daily living expenses. DWP Appointeeship authorises the nominated person to deal with all aspects of the Adult’s benefits. However, if the Adult does have significant financial assets then a Financial Guardianship Order will be required.
In terms of Section 79(a) of the Adults with Incapacity (Scotland) Act 2000, it is possible to apply for a Welfare and/or Financial Guardianship Order in the three month period prior to a child’s sixteenth birthday. However, the order will have no effect until the child becomes an adult.
This Briefing has been produced for information purposes only and is based on the law and other information available at the time of writing. We cannot be held responsible for any losses incurred through acting or failing to act on the basis of anything contained in this Briefing.
If you require advice on any of the matters referred to, please contact us so that we can advise you, taking account of your own particular circumstances and requirements.