You will hopefully have had advice and information about Planning for the Future. This may involve making a will, granting a Power of Attorney and writing an Advance Statement. These are all steps that can be taken while the person with dementia retains capacity.
What do Capacity and Incapacity Mean?
Everyone is presumed to have the capacity to make decisions for themself unless they are assessed as being incapable of doing so. Someone is deemed as lacking capacity when they are not capable of acting on decisions, or making decisions, or communicating, or understanding, or retaining the memory of decisions. Capacity could be impaired suddenly as a result of an incident such as a stroke or a brain injury; or more gradually due to a progressive condition like dementia.
If someone is assessed as lacking capacity by a registered medical doctor or solicitor, their decision-making abilities will be affected in relation to certain aspects of their welfare or finances. Capacity is not an all or nothing state. Capacity is decision specific eg. someone who lacks the capacity to make complex care decisions may still have the capacity to decide what clothes to wear or what to have for dinner.
Making Welfare and Financial Decisions
If an individual lacks capacity to make a decision, someone they have granted powers to can make this decision on their behalf, anyone with these powers must follow a set of Principles. Where these powers have not been granted and a person lacks capacity to make a decision no one has the automatic right to make that decision. In the case where welfare or financial decisions need to be made on an individual’s behalf but the individual lacks capacity a Guardianship Order can be applied for.
This is a legal process which can take up to six months and is a Court Order issued under the Adults with Incapacity (Scotland) Act (2000).
Who Can Apply for Guardianship?
Anyone can apply to the Court for Guardianship, a partner, a family member, a friend or a professional like an accountant or a lawyer. In the absence of a personal contact it may be the Social Work department that makes the application.
How Much Does it Cost and Who Pays?
Applying for Guardianship is a Civil Court Case and will have associated costs, but in most cases where welfare powers are sought either alone or in conjunction with financial power it is eligible for Legal Aid. The adult who is the subject of the Order, not the applicant, is deemed responsible for the Legal Costs.
For further information read the Ceartas Advocacy Factsheet on Guardianship.