The following Private Client guidance note Produced in partnership with Dorothy Kellas of Gilson Gray LLP provides comprehensive and up to date legal information covering:
In this Practice Note, an incapacitated adult is referred to as the ‘adult’.
For information on the legislative framework for guardianships, see Practice Note: Adults with Incapacity (Scotland) Act 2000. For information on making an application to appoint a guardian, see Practice Notes: Guardianship applications in Scotland—pre-application matters and Guardianship applications in Scotland—court process.
Any person to be appointed under the Adults with Incapacity (Scotland) Act 2000 (AI(S)A 2000) must satisfy AI(S)A 2000, s 1, which is summarised as follows:
the appointment must benefit the adult
any intervention must be the least restrictive option in relation to the freedom of the adult
account must be taken of the adult’s wishes, past and present
so far as reasonable the views of relevant other parties must be taken into account
the adult should be encouraged to exercise his or her skills wherever possible
Guardianships are dealt with under Part 5 of AI(S)A 2000 and are most suitable where long-term or ongoing assistance or management is required. It can be a useful way of putting informal arrangements on a proper footing, giving legal protection to both the adult and the person who has hitherto been informally assisting the adult. In some cases, such a step is a pre-requisite of decisions being made or transactions being properly authorised. However, for situations which are more
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