Top tips – legal
Seek advice from a solicitor, if possible with specialist knowledge of disabilities and additional support needs. Govan Law Centre [link], Clan Childlaw [link] or the Scottish Child Law Centre [link] may help find one near you, or visit the Law Society of Scotland website [link} and search for an Accredited specialist in the field of Incapacity and Mental Disability.
Some solicitors offer a first meeting free to work out what’s best for you. Ask about this.
Ask what the costs will be. Fees vary – shop around.
Ask questions if you don’t understand something. More than once if you need to! A good solicitor won’t mind – they will want you to get it right.
Read more about: Top tips – legal
Wills and Trusts
Why people don’t make Wills
- No one likes to think about dying
- People trust families and friends to make sure their wishes are respected
- They think they don’t have much to leave so it isn’t worth it
- It sounds complicated
- The language may be difficult to understand
- There are more immediate priorities
- It costs too much
Sadly none of these make our death less likely, or make it easier for the people we leave behind.
If you have concerns about how a family member will manage when you’re no longer here, it’s especially important to think about protecting their interests.
Find out more about making a Will.
About Trusts
Leaving money or property to someone isn’t always straightforward.
If someone is vulnerable, e.g. because of a disability or learning difficulty, it could affect their eligibility for means-tested benefits or support. That could mean something you intended to help them actually leaves them in a more difficult position.
One way to guard against this is to set up a Discretionary Trust, either during your lifetime or in your Will. Relatives or friends can also leave or give money to a Trust you set up rather than to an individual, providing the Trust formally exists at the time they make the gift (if it’s set up in your Will, it won’t come into existence formally until after you die).
Read more about: Wills and Trusts
Intervention orders
What are intervention orders?
An intervention order allows someone to make one-off or specific decisions, e.g. selling a house or deciding on the best medical treatment at a particular time.
They can also be useful where powers may be needed that weren’t included within a guardianship order, for example if an unforeseen situation were to arise.
Who can apply?
Anyone with an interest in the individual, e.g. parent/carer, local authority officer or other relevant professional.
What are the duties of an intervener?
To carry out a specific one-off act on behalf of the individual, taking into account the principles behind the Adults with Incapacity (Scotland) Act 2000.
How do you apply?
- Appoint a solicitor, with experience of the law as it applies to people with additional support needs.
- Be clear about fees before the solicitors begin to act for you. Don’t be afraid to ask questions, and be prepared to shop around as the process can be costly.
- You can find a solicitor who can apply for Legal Aid. This is likely to be awarded regardless of any savings, if you are applying for welfare powers.
- With the solicitor, identify the professionals who will submit reports to support your application to the Sheriff Court. You will need two medical reports certifying the person’s incapacity. You will also need further professional reports, depending on the powers requested. These could include input from a local authority mental health officer, and/or professionals qualified to comment on financial aspects that may be part of the application. The reports must have been prepared no more than 30 days before applying, including any interviews or examinations that may be necessary. In practice, there may be some flexibility around the 30-day rule, but this is at the Sheriff’s discretion.
- If deadlines aren’t met, the process may have to begin again.
- Submit the application. It needs a court hearing before the Sheriff, who decides if an intervention order is the best way to meet the person’s needs, if the proposed interveners are suitable, and how long any order should last.
When should you apply?
As soon as the need is identified. As with guardianship, it can take some time to prepare the application and get the right reports in place.
Read more about: Intervention orders
Powers of Attorney
What are Powers of Attorney?
Powers of Attorney enable you to support someone who has capacity as defined in the Adults with Incapacity (Scotland) Act 2000. They must appoint you to act on their behalf. It could be to help them now, e.g. to make and communicate decisions they find difficult, or to assume responsibility if they lose capacity in future.
There are two categories: Continuing Attorney (covering property and financial affairs) and Welfare Attorney (covering care arrangements and health issues). You can be appointed an attorney for either, or both.
Who sets up Powers of Attorney?
Powers of Attorney are usually drawn up by a solicitor who is instructed by an individual, to ensure they get the support they need. You don’t have to have additional support needs – any adult can grant Powers of Attorney to relatives or friends, at any time, so long as they are considered to have capacity to understand the documents.
Some charities will draft Power of Attorney documents, and DIY kits also exist. However a solicitor, legal advocate or doctor must sign to certify the person’s capacity. A solicitor may refuse to do this if they have not been involved in the preparation of the documents.
You can’t set up Power of Attorney on someone else’s behalf – they have to do it themselves.
Powers of Attorney are valid once they are registered with the Office of the Public Guardian.
Who can be an attorney?
Anyone the individual chooses. Attorneys must be over 16 and willing to take on the role. There is no limit to the number of attorneys someone can appoint.
Attorneys can resign, or the individual who set up the Power of Attorney can change their mind and remove them. If a financial or welfare guardian is appointed, they override a Power of Attorney where powers overlap.
Continuing (financial) attorneys can be individuals or organisations, e.g. a firm of solicitors. Welfare attorneys can only be individuals.
What are the duties of an attorney?
Attorneys are expected to act reasonably and in good faith, and to follow the General Principles. They should be responsible, contactable and keep records of their actions.
The relationship is largely one of trust, but there are formal procedures if attorneys are thought to have acted inappropriately. There are also some limitations, for example attorneys may not make a Will for someone, vote on their behalf, or appoint replacements.
What is the process of setting up Powers of Attorney?
- Choose a solicitor, with experience of the law as it applies to people with additional support needs.
- Be clear about fees. Don’t be afraid to ask questions, and shop around as the costs can vary.
- Discuss with the solicitor what should be included in the Power of Attorney document. Many have standard templates, but these can be tailored – e.g. to exclude certain actions, or to specify under which circumstances an Attorney can act. Changing a template may incur an extra cost.
- Agree the final form of words. When this is done, the individual signs the document in the presence of a witness and a doctor or solicitor, who certify they understand what Power of Attorney means and are acting of their own free will.
- The solicitor registers the document with the Office of the Public Guardian. This must be done before Attorney(s) can act on someone’s behalf.
When should you apply?
Anyone over 16 can grant Powers of Attorney, at any time, so long as they have capacity.
Read more about: Powers of Attorney
Guardianship
What is guardianship?
Guardianship safeguards vulnerable people who are 16 or over but lack the capacity to make decisions or take action for themselves.
It lets others take decisions on their behalf, subject to safeguards specified when the guardians are appointed.
Guardianship can be granted either for health and welfare, or finance, or both.
Who can apply?
Anyone with an interest in the adult, e.g. parent/carer, local authority officer or other professional.
More than one guardian can be appointed.
What are the duties of a guardian?
Precise duties are defined by the Sheriff when the order is granted. They may include administrative duties around someone’s finances and property, for example preparing a management plan, keeping records, and submitting annual accounts.
Before a guardianship order ends, the guardian should prepare a renewal application if powers are still needed.
Financial guardians are supervised by the Office of the Public Guardian (Scotland). Welfare guardians are supervised by the relevant local authority.
All guardians should stick to the General Principles.
How do you apply?
- Appoint a solicitor, with experience of the law as it applies to people with additional support needs.
- Be clear about fees before the solicitors begin to act for you. Don’t be afraid to ask questions, and be prepared to shop around as the process can be costly.
- You can find a solicitor who can apply for Legal Aid. This is likely to be awarded regardless of any savings, if you are applying for welfare powers.
- With the solicitor, identify the professionals who will submit reports to support your application to the Sheriff Court. You will need two medical reports certifying the person’s incapacity. You will also need further professional reports, depending on the powers requested. These could include input from a local authority mental health officer, and/or professionals qualified to comment on financial aspects that may be part of the application. The reports must have been prepared no more than 30 days before applying, including any interviews or examinations that may be necessary. In practice, there may be some flexibility around the 30-day rule, but this is at the Sheriff’s discretion.
- If deadlines aren’t met, the process may have to begin again.
- Submit the application. It needs a court hearing before the Sheriff, who decides if guardianship is the best way to meet the person’s needs, if the proposed guardians are suitable, and how long the guardianship order should last (typically 3 years, but it may be longer or shorter).
When should you apply?
For the order to be effective immediately on reaching 16, you should apply 3 months before the 16th birthday.
You don’t have to apply before someone reaches 16, but after this you will have no legal right to act for them until an order is in place.
Bear in mind preparing the application can take a long time, especially if you apply for Legal Aid.
Setting up a Trust
What is a Discretionary Trust?
Placing money or property in a Discretionary Trust means it doesn’t pass to an individual. Instead it is managed by trustees who can be directed to act in someone’s interest and for their benefit. You choose the trustees when you set up a Trust, and they appoint others as necessary. You can say how you want them to act in a Letter of Wishes. For example, you might ask the trustees to allow a beneficiary of the Trust to live in a property rent free for their lifetime, or to use money in the Trust to pay everyday bills.
You can set up a Trust at any time. If it’s during your lifetime, most people include themselves among the trustees. If it’s in your Will, it won’t come into effect until you die, so you choose the trustees who will manage it.
What are the down sides?
Setting up a Trust is costly and it can be complicated. A solicitor can advise on what works best, but you are responsible for making sure what they suggest will meet your aims.
If the Trust will generate income, for example through investments or by renting out property, the trustees are responsible for filing tax returns and other general administration.
No one has a right to anything managed by a Discretionary Trust, even if they are named as a beneficiary. In practice a Trust usually acts according to the wishes and aims of the people who set it up, but the trustees can depart from this if they choose. So it’s important to appoint trustees who understand the principles you want them to use in making decisions, as well as the decisions themselves.
A Letter of Wishes can specify how you want the trustees to act but this is for guidance and isn’t legally binding.
How do I set up a Discretionary Trust?
You must do this through a solicitor.
- You will need to explain the purpose of the Trust and what you want it to achieve. A solicitor can advise on what works best based on their experience, but you are responsible for making sure what is suggested will meet your aims.
- It helps to know what you plan to place in the Trust: e.g. a sum of money, or the deeds of a property. You can set up the Trust well before it is needed, with just a small amount of money in it.
- You specify who is intended to benefit from the Trust (the “beneficiaries”). You can name any number of beneficiaries.
- You also choose the trustees. These can be friends or family, or independent professionals such as a firm of solicitors. It’s important to choose people you trust to make responsible decisions, as they will have complete control over how the Trust is managed and how any money is used, including if and when to make payments on behalf of the beneficiaries.
- The solicitor will draw up a Deed of Trust and should advise on the wording of a Letter of Wishes to instruct the trustees. You can update the Letter of Wishes at any time if you want to take changing circumstances into account.
Read more about: Setting up a Trust
Criminal justice system
No one plans for their young person to be in a situation where the police become involved. But it’s important to be aware of how you can support them if it happens.
Your young person could come into contact with the police if they
- commit a crime, or are accused of committing a crime
- are the victim of a crime
- witness a crime.
Committing a crime
If someone is over 16 and accused of committing an offence, they are considered to be an adult. You will only be able to accompany them at the police station or subsequently if you have guardianship.
If you don’t have this, and a police officer recognises they have a disability or learning difficulty, an “appropriate adult” will be brought in to support them. This will usually be a duty social worker, who may not know or understand the person or their condition. They will try and make sure someone understands what’s happening and what they are being told, but it isn’t their role to give advice or direct support.
The organisation SOLD – Supporting Offenders with Learning Disabilities – has an Easy Read guide to what happens when someone is arrested, and what to expect.
Being a victim of crime
Anyone can become a victim. You can report a crime on someone else’s behalf by calling the police using 999 in an emergency, or 101 for non emergencies – always be clear about any disability and how it affects the person concerned. You can stay with them and help the police understand how best to communicate with them.
Hate crime is crime motivated by ill will towards someone because of their race, religion, sexual orientation, gender identity or disability.
Many hate crimes go unreported because victims don’t know how to report the matter or think it won’t be taken seriously.
You can anonymously report a hate crime online through the Police Scotland website or through third party reporting centres – these are based in places like libraries or council offices where staff should have been trained to help a victim or witness to a hate crime.
Find a list of third party reporting centres across Scotland.
Mate crime is when someone befriends a vulnerable person with the intention of exploiting them financially, sexually or any other way.
Young people can be vulnerable if they have difficulty reading social situations and may not be clear if someone is a genuine friend or not.
Signs someone may have been a victim of crime include:
- giving away their money and possessions, or money and possessions going missing;
- property damaged or destroyed;
- bruising or soreness indicating physical or sexual abuse;
- uncharacteristic mood change – depression, fear or violent behaviour;
- change in social hygiene and self care;
- any indication of alcohol or drug abuse.
Victims and witnesses of crime who have a learning disability should get help from the Victim Information and Advice Service, which is part of the Prosecution Service.
Witnessing a crime
If your young person witnesses a crime, it’s important to put everything they know or recall about the incident in writing as soon as possible. You can do this with them.
You should then report the incident to the police as soon as possible. Be clear about the young person’s disability and how it affects them. The police will need to speak to them and you can help them ask questions appropriately.
Your young person may be called as a witness if an offender comes to trial. If that happens they will be given any help they need to go to court. If they will find going to court too difficult, there are special measures the sheriff or judge can allow under the Vulnerable Witnesses (Scotland) Act (2004). They could be allowed to sit behind a screen or use a TV link to give evidence, to have a supporter with them, or to make a written statement to be read out in court.
Victim Support Scotland can help victims or witnesses with learning disabilities through the court process.
Read more about: Criminal justice system
Legal aid
What is Legal Aid?
Legal Aid can help with legal costs. A solicitor has to apply to the Scottish Legal Aid Board on your behalf.
Who qualifies?
Applicants need to prove they can’t pay, and that the matter is important.
A parent or carer can request legal aid in the name of a young person under the age of 16, rather than their own name. This is useful when making a guardianship application. As most young people have little or no personal income or savings they may be more likely to qualify.
If you are applying for welfare powers, for example in a guardianship or intervention order, legal aid is likely to be awarded regardless of the level of income or savings.
Finding a solicitor
Many people report it is difficult to qualify for legal aid or to find a solicitor to accept legal aid cases.
Appealing a decision
If you are refused legal aid, your solicitor can ask the Scottish Legal Aid Board to reconsider their decision. However if the decision still stands following an appeal, it is likely you will have to pay privately.
Making a Will
Why do I need a Will?
If there isn’t a Will to make your wishes clear, a legal process kicks in under the Succession (Scotland) Act 1964. That means your family or friends don’t have a free hand to carry out what they think you wanted.
An executor has to be appointed by the court, with the cost taken out of what you leave (your “estate”).
There is an order in which people inherit what you own when you die. First is your spouse or civil partner, who is entitled to what are called “Prior Rights”. This gives them a stake in your house, furniture or belongings, and money in the bank up to a given level, even if you are separated.
If there is money left, “Legal Rights” apply next. These allocate a further share of your estate to your spouse or civil partner and a share to be distributed among your children.
Anything left is distributed in an order set out in the Act, meaning your parents and siblings could also be entitled to a share of the estate.
A partner you are not married to or in a civil partnership with is not automatically entitled to any part of your estate however long you may have been together.
To avoid extra costs of administering your estate through the courts, and to make sure whatever you leave goes where you intend, you should make a Will.
Do I have to use a solicitor?
No – but it is always advisable. It’s important to avoid mistakes and to make sure what you’ve written won’t be misinterpreted. If someone challenges your Will, it can mean long and costly court action during which time no one can receive what you left them.
If your circumstances are complicated – e.g. your children have different parents, or you plan to leave money to someone who can’t manage their own finances – it’s especially important you get it right.
A Will is valid if:
- It says how you want your belongings shared out when you die (people inheriting anything from you are called “beneficiaries”).
- You’ve said who you want to be responsible for making sure your wishes are carried out (your “executor”). This can be a relative or friend, and you can still leave them something in the Will if you want. It can also be someone independent, such as a solicitor. It’s a good idea to name more than one executor, in case someone can’t do this when the time comes.
- It was made when you could make your own decisions and weren’t being pressurised by anyone.
- You sign it at the bottom of each page, then sign and date the last page in front of a witness (who can’t be a beneficiary or executor of the Will), who then sign it themselves.
Template documents to write your own Will are available in stationery shops, but beware – many of these may not be tailored to Scottish law.
How much does it cost?
Always check fees with a solicitor before asking them to do work for you. Generally the more complicated your wishes and circumstances, the more expensive the Will is. A simple Will costs a few hundred pounds, but a specialist Will, involving trusts, overseas properties or tax planning, can cost much more.
Advantages of having a Will
You have more choice over who is involved in the process and who inherits your belongings; you can also give instructions for your funeral, and maybe look at ways to reduce inheritance tax. You can say who you want to look after any children under 16 or vulnerable adults, and setting up a Will may be cheaper than if you die without one.
What should you include?
Many people feel they don’t have much to leave, but it can add up to more than you think.
Take into account:
- Your house, and its likely value at the time you die
- Value of the contents, particularly any special belongings or collections
- Belongings such as your car, bike, computer, any sports equipment
- All bank and building society accounts
- Any other savings, e.g. National Savings Certificates, Premium Bond, ISAs
- Life policies and pensions
- Particular items, e.g. family jewellery or anything with sentimental value
You may also want to make particular bequests, e.g. to a friend who has supported you over the years, or to a charity.
Someone must be over 16 under Scottish law before they can insist on receiving their inheritance. If they are not, a Will may allow payment to be made on their behalf to their parent or guardian.
Leaving money to someone who has a disability
It’s important to get expert advice if you want to leave money or property to someone who can’t manage their own finances, or who depends on benefits for a large part of their income.
Even a solicitor may not always understand the impact on someone’s eligibility for certain benefits or support, so make sure you speak to someone who does. Call Contact’s helpline for advice or speak to your local carers’ support organisation before starting to draw up the Will.
Read more about: Making a Will
Legal matters
Taking care of the legal side makes sure you can go on supporting your young person into adulthood, and protecting their interests as far as possible.
Things to think about
Guardianship, Power of Attorney and Intervention Orders
Under Scottish law, a young person becomes an adult on their 16th birthday.
That means families no longer have the legal right to take decisions or act on their behalf – even if they believe the young person doesn’t fully understand their situation or can’t reliably communicate their wishes.
There may be many situations where parents and carers might want to keep doing this. Here are a few:
- If someone has to go into hospital, especially in an emergency.
- To help manage finances, benefits and bank accounts.
- To make sure the right support is in place.
- If someone needs to set up contracts and agreements, e.g. rent, insurance, gas and electricity.
Wills and Trusts
A Will tells everyone what you want to happen to your money, possessions and property after you die. Without a Will, you can’t be sure decisions about your belongings will be in line with your wishes.
Trusts are a way of managing money, property or other assets. One reason for setting up a Trust is to protect assets for someone who is vulnerable or who can’t manage their own affairs.
It’s important to plan properly for when you are no longer around.
Find out more about wills and trusts.
Criminal justice system
The police may become involved if your young person
- is the victim of a crime.
- is a witness to a crime.
- is alleged to have committed a crime.
Contact with the criminal justice system is often unexpected and it’s normal to feel unprepared and afraid on your young person’s behalf.
Find out what you need to know and where you can get help.
Legal aid
Legal costs can be high and getting legal aid may not be easy. However young people under the age of 16 should qualify for legal aid, if they have little or no personal income or savings.
Find out more about Legal Aid and how it works.
We are grateful for the support and advice of Gillespie Macandrew LLP in compiling the information in this section
