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Welfare guardianship and legal aid

19 March 07

A note of recent legal aid changes relating to applications for intervention and guardianship orders made by a person other than the adult with incapacity

by David McClements

Civil legal aid is now available without a financial assessment of resources being required, and has been since 1 August 2006 for all summary applications under the Adults with Incapacity (Scotland) Act 2000 where the case relates to an application (made by any person other than the adult him or herself) for intervention and guardianship orders which in any way concern the personal welfare of the adult.

In other words any person concerned with or having an interest in the property, financial affairs or personal welfare of the adult in terms of the 2000 Act may make application for civil legal aid without any regard being made to their income or capital and without any contribution being payable by them to the Legal Aid Board. This change, introduced by the Civil Legal Aid (Scotland) Amendment (No 2) Regulations 2006, was brought about after much campaigning which had sought to have legal aid available when welfare matters were being considered in respect of an adult, and mirrors the ABWOR regime which was available for guardianship cases under the Mental Health (Scotland) Act 1984.

However, there still remains an anomaly in that although civil legal aid for such applications can be made without an assessment of income and capital, there is still a requirement when applications are made for civil advice and assistance to assess income and capital and this is an aspect of which practitioners should be mindful.

David McClements