Talking about tomorrow


“Incapacity” and what it means

Many people are uncomfortable with the word “incapacity”, but this is the legal term used to indicate someone can’t make decisions for themselves or take action on their own behalf.

Under the Adults with Incapacity (Scotland) Act 2000, the Sheriff has to be satisfied that is the case before appointing a guardian or guardians.

The Act works on the basis that the law should intervene to the least extent needed to safeguard someone. That means someone may have capacity according to the legal definition, even if they need support to manage their affairs or communicate decisions. If the Sheriff believes they have capacity, guardianship will not be granted.

Under the Act, someone has “incapacity” if they:

  • can’t take action for themselves, or
  • can’t make, communicate, understand or remember decisions,

because of mental disorder, or of inability to communicate because of physical disability.