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Family Matters – Legal Considerations for Parents and Carers

Becoming a parent can also be all consuming, but there are a number of legal matters you should

Vulnerable children’s transition to adulthood

Published: 27 September 2021
Time to read: 3 mins

A child’s 16th birthday is a milestone to celebrate in any family, but for some it also brings anxiety about the future. One important consequence of becoming an adult – which, in Scotland, simply means turning 16 – is that parents lose the authority they previously had to make financial, health and welfare decisions on their child’s behalf.

Adults who have sufficient ‘capacity’ (as defined in the Adults with Incapacity (Scotland) Act 2000) can plan for the future by granting a ‘Power of Attorney’ (PoA), which gives people they trust – typically family or friends – legal authority to act for them if they later want or need help safeguarding their health and welfare, or looking after their property and financial affairs. It is not possible to arrange a PoA on someone else’s behalf.

Of course, PoAs offer little consolation to families or carers of adults who have lost – or who perhaps never had – the necessary level of understanding to grant their own PoA. They may face a period after the person has turned 16 when no one is entitled to make decisions on his or her behalf. This ‘authority vacuum’ lasts until other arrangements can be put in place, resulting in delays (if, say, organisations insist that applications for funding can only be signed by someone with formal legal authority) or missed opportunities (such as accepting an appropriate housing place). Powers might also be urgently required to prevent an individual from mixing with the wrong people.

All children needing additional support must be given extra help when preparing to leave school. In theory, this transition process should commence at least a year beforehand, which is also the ideal time to start making plans to avoid the above authority vacuum.

The 2000 Act does provide other solutions for managing the affairs of adults who are unable to grant a PoA, and the most comprehensive option requires a court application for a ‘Guardianship Order’. Guardians have a similar role to that of Attorneys, but they are usually given fewer powers and carry a larger administrative burden in terms of ongoing management and reporting responsibilities.

Until a few years ago, a Guardianship action could not be raised before the child’s 16th birthday, which often meant an authority vacuum of several months. Thankfully, the law was changed so that applications can now be lodged up to three months in advance, thus making continued protection possible. If your child is 15 or older and you share these concerns for the future, please consider getting in touch so that we can guide you through this complex area.



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