Residential property
12 Feb 2020 News

Planning Ahead for Parents of Vulnerable Children – Part 2 Guardianships & Powers of Attorney

Guardianships and powers of attorney are often thought of as being predominantly for the elderly, but this is far from the case.  If you are a parent of a vulnerable child, it is important you are aware of the importance of guardianship and power of attorney as your child approaches the age of 16.

In Scotland, apart from driving and licensing laws, the Age of Legal Capacity is 16.  This means that when your child reaches 16, you can no longer make financial decisions on behalf of your child or, perhaps more importantly, make decisions regarding his or her education, healthcare and accommodation.  The law says that your child must either make their own decisions or, if they have the capacity to understand what they are doing, grant a power of attorney to allow you to make decisions or help them make decisions.

However, this is not an option if your child does not have the understanding required to grant a power of attorney.  If this is the case then you must make an application to the local sheriff court to be appointed as a guardian.  The law enables the application to be submitted to the court three months prior to your child’s 16th birthday however, we recommend starting the process when your child reaches 15.  This is because it can take up to a year to gather all of the information to submit your application to the court, allowing more time makes for a smoother transition when your child reaches 16.

This transition period can be an extremely stressful time for the whole family as it involves progressing from children’s services to adult services.  School education may be coming to an end, further education or training decisions may have to be made and care packages may have to be either set up or reviewed.  All of these matters are likely to require decisions to be made by or on behalf of your child and a power of attorney or guardianship will be required. 

One aim of every parent is to ensure that in the future, where possible, your child will be able to live independently or have reduced support.  As such, how this period in life is managed can have a huge impact for the future of your child.  So much so, the Disabled Children and Young People (Transitions)(Scotland) Bill, currently before the Scottish Parliament, would give every child with an impairment or long term condition, a right to a Transitions Plan. 

We welcome this Bill as, for parents of vulnerable children, the time can be very fraught since the power to make decisions to protect that child’s welfare and best interests is swept away on their 16th birthday. Planning ahead and looking at options before your child turns 16 can help to ease the transition and remove the focus from legal issues, thus allowing energy to be directed towards the important things – like celebrating a sweet sixteen.

We would be delighted to speak with you about your concerns or, if you have a family solicitor, we are happy to work with your solicitor to put in place the most appropriate arrangements for your family. 

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