About McLennan Adam Davis

What are my legal options if a loved one has lost capacity?

A loved one losing the capacity to make their own decisions can be highly distressing. As well as coping with your own emotions, you will need to take care of your loved one’s finances and welfare arrangements.

The team at McLennan Adam Davis are here to support you during this challenging time. Speak to us today for guidance with any matters related to capacity – call 01292 289 584 or use our online contact form.

What is mental capacity?

The Adults with Incapacity (Scotland) Act 2000 describes a person as lacking mental capacity if they cannot:

    • make or implement decisions;
    • communicate decisions;
    • understand decisions;
    • remember decisions.

Mental capacity must be determined by a doctor.

What can I do if a loved one has lost capacity?

If a loved one has lost capacity, your legal options depend on whether a Power of Attorney exists. If it does, the legal framework should already be in place for an appointed individual to take on decision-making powers.

Power of Attorney

A Power of Attorney document authorises a chosen individual, known as the attorney, to handle the financial and personal affairs of the incapacitated person, referred to as the granter.  

Power of Attorney can only be granted by the person before they have lost capacity. It takes effect if the granter loses capacity or provides a letter advising that they wish their attorney to begin acting on their behalf.

Having a Power of Attorney in place can offer peace of mind to the granter and their family members as, should it be necessary to take responsibility for the person’s affairs, the process is straightforward and immediate.

Intervention and guardianship orders

If no Power of Attorney exists, you can apply to the court for powers under a Guardianship Order to make decisions on financial matters, welfare matters or both. Since the process can be complex, the Office of the Public Guardian advises applicants to seek legal support.

If you need authority to make or implement a one-off decision, such as selling a property, you can apply to be an intervener. If your loved one needs to have their affairs managed on an ongoing basis, you can apply to be a guardian.

If you or another person close to your loved one cannot take on the role of intervener or guardian, a member of the local authority’s social work department can apply.

Contact our Power of Attorney and Guardianship Solicitors, Ayr, Troon, Kilmarnock, Irvine, Stranraer, Dumfriesshire and Glasgow

For more than two decades, McLennan Adam Davis has supported families preparing for and coping with a relative losing mental capacity. Our exceptional team offer heartfelt advice and legal guidance at a trying time, working diligently to ensure your loved one’s needs are met and wishes fulfilled. For help regarding a Power of Attorney, intervener or Guardianship Order, or any other matters, please call us today on 01292 289 584 or use our online contact form.

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