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When to use Guardianships and Powers of Attorney

Published: 18 March 2019
Time to read: 4 mins

Guardianships and Powers of Attorney are often primarily associated with the elderly, but this is far from accurate. The 2017/18 report by The Mental Welfare Commission for Scotland (MWC) stated that one fifth of welfare guardianships granted that year were for people aged 16-24 with learning disabilities.

In Scotland, apart from driving and licensing laws, the Age of Legal Capacity is 16, meaning that when a child reaches this age, their parents may no longer make financial decisions on their behalf, or regarding their education, healthcare and accommodation. It is then necessary for the young adult to either make their own decisions or, if they have the capacity to understand what they are doing, grant a power of attorney.

I, together with some lawyer colleagues, have been working for a number of years with the charity, Contact, (formerly known as Contact a Family) to explain to parents of children with additional support needs (ASN) what options are available when their children turn 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 set up or reviewed.

We understand that all of this can be emotional and often daunting but we’re here to cut through the legal jargon, explain your options and help you choose the best solution. We have offices in Edinburgh, Glasgow and Perth, so if you’re looking for a law firm in Scotland, we have someone who can help.

The legislation regulating the current systems of Guardianships – the Adults with Incapacity (Scotland) Act 2000 – contains five overarching principles, one of which is that the adult is to use existing skills and develop new ones. One aim of every parent is to ensure that in the future, where possible, their 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. At this stage, the Scottish Government’s principle of ‘Getting it Right for Every Child’ is every bit as important as in earlier childhood.

Contact is currently running a Transition project to assist parents of children with ASN to negotiate this area and has just announced the first Scottish National Transitions Conference to be held in Glasgow on 13 March 2019.

We take a holistic approach and look at legal affairs for the whole family. Parents themselves will be looking ahead and to the possibility that they may not always be able to look after their family. They should be looking to grant powers of attorney to ensure that their own affairs are in order should they lose capacity to deal with matters. Otherwise, if the unthinkable happens and they are incapacitated permanently, there would need to be a guardianship appointment for them too.

One certainty in life is death and it is essential that parents should have a valid Will in place, particularly for children who are not so capable of looking after themselves. They may have to think about where the children are likely to be living and what care will be needed. Their child may also be in receipt of means-tested benefits, which would no longer be awarded should they receive even a moderate inheritance.

We often recommend clients to set up discretionary trust Wills, whereby a trust is set up with a number of potential beneficiaries, none of whom have a right to any share of the estate.  Payments to the beneficiaries are decided by the Trustees, who are guided by a Letter of Wishes written by the granter of the Will.  This may include wishes as to provision of accommodation for their child with ASN or the purchase of items for them. The Trustees could pay them funds, but it would not affect the means-tested benefits received.

Watching a child grow towards adulthood is an emotional, trying and gratifying time for any parent. However, for those whose children have ASN, the time can be very fraught as the power to make decisions to protect that child’s welfare is swept away when they turn 16. We can help by discussing what options are available during this transition and help to put measures in place to allow you to keep making decisions and care for your child.

Planning ahead and looking at options before the child’s birthday can help to ease the transition, thus allowing energy to be directed towards the important things – like celebrating a sweet sixteen.

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