HM Insights

How do you manage the affairs of someone who has suffered incapacity in Scotland?

Dealing with the affairs of someone who has lost capacity can be difficult, particularly if they have not made a Will or other arrangements.

Capacity in Scotland is governed by the Adults with Incapacity (Scotland) Act 2000. This provides various mechanisms by which incapacity can be managed, namely Powers of Attorney, Intervention Orders and Guardianship Orders.

In England, unlike Scotland, it is possible for a statutory Will to be made on behalf of an adult lacking mental capacity – one which would take the place of a pre-existing but outdated Will.

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A case of incapacity from south of the Border

The problems that can arise when someone suffers incapacity were once again highlighted in a recent case in England which asked the question: can you exclude a beneficiary from taking part in court proceedings to create to new statutory Will for someone who now lacks capacity to make their own new Will?

The Court of Protection in England ruled that it was valid in the particular circumstances of the case.

Details of the case

The adult in question was a businessman who had taken steps to protect his estate and affairs by making at least five Wills, the most recent of which dated back to 2009. He later suffered a stroke, and the court appointed his partner and daughter to act as his "deputies". This is a court appointed role that allows financial and welfare decisions to be made on behalf of an adult lacking mental capacity.

The incapacitated adult also had a son who suffered from alcohol and drug addiction. The son had been extremely violent towards his father, as well as other family members. This had resulted in the son attacking his father and threatening to kill him, and had required the intervention of an armed police unit. The son had also made numerous demands for money and had been subjected to a restraining order as well as a lengthy prison sentence.

The son had been nominated as the primary beneficiary of two trusts under the 2009 Will. The partner and daughter claimed the incapacitated adult had been on the verge of making a new Will prior to suffering a stroke. The deputies submitted an application to the court and argued a new statutory Will was in the best interests of the adult because his circumstances had changed significantly since 2009. The application initially proposed to widen the class of beneficiaries of one of the trusts and to reduce the trust fund by £50,000. As proceedings progressed, the terms of the proposed Will were altered so that the son would not be materially or adversely affected.

The application requested the son be excluded from proceedings, and any further hearings be conducted in private.

The court's decision

The court held it was valid to dispense with the requirement to notify the son, or to serve him with application papers. This was founded on the basis the son would not be materially or adversely affected by the application. The court held this was in the best interests of the adult, and the wider family; and was necessary to protect them from any further violence.

Get in touch

While this case discusses an interesting situation, unlike in England it is not possible in Scotland for a statutory Will to be made on behalf of an adult lacking mental capacity.

Incapacity can raise a wide range of issues. It affects not only the individual who has lost capacity, but also their closest relatives. It requires careful planning, as well as guidance on the options available and advice on the procedures that are in place. Please be in touch if you wish to discuss any aspect of incapacity in more detail.

Useful Links

MAKING A WILL

Power of attorney

EXECUTRY ADMINISTRATION

DISPUTES