Incapacity & Mental Health Solicitors

Providing legal assistance and representation in relation to Guardianship, Power of Attorney and Mental Health Law

Services

The firm provides a range of legal services to those affected by incapacity and mental health difficulties throughout Glasgow, East Renfrewshire, Lanarkshire, Dunbartonshire, Falkirk and Renfrewshire. We assist with applications for welfare and financial guardianship in respect of an adult with incapacity as well as preparation of powers of attorney and can offer advice on the most appropriate course of action to take. We also offer advice to individuals affected by restrictions imposed under the Scottish Mental Health Act including detention in hospital.

We appreciate that this can be a stressful time for you and your family. Home and virtual meetings are available and we can to arrange to meet with you outwith general business hours. We undertake to provide an efficient and sympathetic service and will be available to guide you through each step of the process.

Legal Aid is often available. We are happy to provide a no obligation service to assess your eligibility for free legal assistance.

Mental Health Law

We provide legal representation for individuals with mental health difficulties and their families. If you, or a family member, are subject to detention or restriction under mental health law we can assist. We can offer advice and can represent you at a Mental Health Tribunal.

We aim to deliver a swift and efficient service and will respond to your query as soon as possible. We can travel to meet with you whether you are in hospital or at home.

Legal Aid is always available to those subject to legal measures, and their Named Persons, regardless of income or financial circumstances.

Guardianship and Power of Attorney

Guardianship orders are generally sought for a family member who has lost the capacity to manage their own affairs. We can provide advice and assistance to those seeking to obtain welfare or financial guardianship in respect of a loved one.

A Power of Attorney enables you to plan for your future. A Power of Attorney is a written document giving a person authority to make decisions or to act for you. You choose who is provided with the authority, when it comes into effect and what type of decisions should be made on your behalf.

If you are unsure of whether a Guardianship Order or Power of Attorney is the appropriate course of action we are happy to discuss your circumstances and options available.

Providing Compassionate Legal Guidance

Lesley Govan Associates Ltd was founded by Lesley Govan, a dedicated and experienced Solicitor with a passion for helping individuals navigate complex legal matters. With a primary focus on welfare and financial guardianship, power of attorney, and mental health law, the firm was established with a vision to offer tailored, pragmatic advice and representation to those in need.

We understand that legal matters can be intimidating and overwhelming. That's why we prioritise delivering a bespoke service that centres on empathy and compassion. We recognize that every individual has unique circumstances, and we take the time to understand your specific needs and concerns.

When you choose to work with us, you'll enjoy direct, one-on-one contact with a dedicated solicitor. This individualised approach ensures that you have a knowledgeable and experienced professional by your side throughout your legal journey.

Whether you require assistance with welfare and financial guardianship, power of attorney, or mental health law, Lesley Govan Associates Ltd is here to provide the support and guidance you need. We are committed to helping you achieve the best possible outcome for your unique situation.

We aim to respond to all new enquiries within twenty-four hours of you contacting us and are happy to come to meet you at home or in hospital. We can also offer meetings via video conferencing using Whatsapp, Zoom, Messenger or MS Teams.

Lesley Govan, L.L.B., Dip. L.P., N.P.
Director

Lesley has a particular interest and in adult incapacity mental health law. She has over twenty-five years of experience in the legal environment. She provides advice and assistance to those faced with capacity issues either directly or in respect of a loved one, including dementia and learning disabilities. She is regularly appointed to act as Curator ad Litem by the Mental Health Tribunal for Scotland to individuals with impaired capacity as a result of mental illness or disability. She strives to provide holistic and pragmatic advice tailored to each individual's circumstances and personal wishes.

Call Lesley on 0141 354 8953 or

email her at lg@lesleygovanassociates.uk

Contact Us

0141 354 8953

Welcome to our Blog!

Understanding the Costs of Obtaining a Welfare Guardianship Order in Scotland

By Lesley Govan • 25 Oct, 2023

It's essential to know that the Scottish Legal Aid Board (SLAB) plays a pivotal role in providing financial assistance. The good news is that SLAB assesses the provision of legal aid funding for Welfare Guardianship matters based on the merits of the proposed application only. This means that the financial circumstances of the adult in question or any proposed guardians are not taken into consideration when determining eligibility for legal aid.

Ensuring the Well-being of Vulnerable Loved Ones: Consent and Covid-19 Vaccination

05 Oct, 2023

In most cases, adults over the age of 16 are presumed to have the capacity to make their own medical decisions, including vaccinations. However, some individuals may lack the capacity to make such decisions due to mental disorders. The Adults with Incapacity (Scotland) Act 2000 defines the lack of capacity as the inability to make, understand, remember, communicate, or act on a decision due to mental disorder. Fortunately, many people with mental illnesses, learning disabilities, and related conditions can still provide consent for vaccination. With proper support and communication methods, they can make informed decisions about their health.

Understanding the Rising Impact of Alzheimer's Disease and Dementia in Scotland

By Lesley Govan • 20 Sep, 2023

In a recent report published by the National Records of Scotland, alarming statistics have come to light regarding the increasing prevalence of Alzheimer's disease and other forms of dementia in the country. The data shows that in 2022, a total of 6,277 deaths were attributed to these debilitating conditions, marking a troubling increase of 231 deaths compared to the previous year. These figures reveal a growing concern for public health and the need for a deeper understanding of the challenges posed by dementia. The Demographics One of the most striking revelations from the report is that over 80% of these deaths occurred among individuals aged over 80. This age group seems to be particularly vulnerable to dementia-related conditions, emphasizing the pressing need for tailored healthcare services and support for our elderly population. Settings of Care The report also highlights the diverse settings in which these deaths occurred. A significant 64% of dementia-related deaths took place in care homes, while 22% occurred in hospitals, and 14% happened at home or in non-institutional settings. This distribution underscores the need for comprehensive care strategies that cater to the unique requirements of dementia patients, whether they are in institutional or home-based care settings. Regional Variations At the local health board level, the data revealed intriguing variations in mortality rates over the past five years. Regions such as Lanarkshire, Greater Glasgow and Clyde, and Forth Valley experienced the highest mortality rates, while the Borders recorded the lowest rate. These regional disparities hint at the importance of local healthcare systems and their ability to provide adequate support and resources for dementia patients and their families. The Need for Quality Dementia Care Given the growing impact of dementia in Scotland, it is imperative that individuals living with these conditions receive the highest quality of care throughout their journey, from diagnosis to end of life. Dementia can significantly impair a person's ability to make decisions about their own care, making it essential for loved ones to step in and advocate on their behalf. Guardianship Orders In some cases, it may become necessary to obtain guardianship orders to ensure the well-being and proper care of individuals living with dementia. These legal measures allow family members or close friends to make decisions on behalf of the affected individual when they are no longer able to do so themselves. If you find yourself in a situation where you believe a guardianship order may be necessary, seeking legal advice and guidance is crucial. Conclusion The statistics published by the National Records of Scotland are a stark reminder of the increasing burden of Alzheimer's disease and other dementias in our society. As we grapple with these challenges, it is incumbent upon us to prioritise research, support, and healthcare services that address the unique needs of individuals living with dementia, particularly among the elderly population. By working collectively to enhance the quality of dementia care and support, we can strive to improve the lives of those affected by these devastating conditions and provide the dignity and respect they deserve. If you have questions or concerns about guardianship orders or need guidance related to dementia care, do not hesitate to contact professionals who can provide valuable assistance during these difficult times.

Don't be Offended!

15 Sep, 2023

Investigation and capacity assessment when preparing power of attorney

Meander for Mental Health at Leverndale Hospital

By Lesley Govan • 12 Sep, 2023

"Meander for Mental Health" takes place on Saturday, 16th September. This is an excellent opportunity to explore the lovely grounds of Leverndale Hospital in Crookston and the surrounding green spaces. It's an all-day affair filled with free activities for people of all ages. Whether you're a community member, a patient or a family member, all are welcome! You can come alone or bring your friends and family along for the adventure. The festivities kick off at 11:00 am at the administration building (site entrance B) of Leverndale Hospital and wrap up at 4pm. There are guided walks at 11am and 2pm. Don't forget to sign up for free on the Meander for Mental Health Eventbrite page here https://www.eventbrite.co.uk/e/meander-for-mental-health-2023-tickets-685433037667?aff=oddtdtcreator . As a bonus, everyone who registers and completes a walk will receive a goodie bag with an event t-shirt. From September 10th to 16th, it's National Suicide Prevention Week, and Glasgow Health and Social Care Partnership is encouraging everyone to take care of their mental well-being by enjoying the outdoors in our local green spaces. Along the walking routes, you'll discover the beauty of Leverndale's upgraded pathways, green spaces, and stunning mural artworks. The 2pm walk even has a nature theme for nature enthusiasts. Plus, there's more to enjoy throughout the day, including a visit from a local fire engine, specialized bikes for all skill levels, face painting, and live music. Join us on September 16th for a day of outdoor fun, relaxation, and community support. It's a fantastic opportunity to take care of your mental health while enjoying the beauty of our surroundings. See you there!

Adult Incapacity in Scotland

04 Nov, 2018

In Scotland, the legal framework for addressing adult incapacity is primarily governed by the Adults with Incapacity (Scotland) Act 2000. This legislation sets out the principles and procedures to protect the welfare and finances of those who lack capacity. Key Aspects of the Act: Guardianship : Under this act, individuals or organizations can be appointed as guardians to make decisions on behalf of adults who are incapable of doing so themselves. There are two main types of guardianship: welfare and financial. Welfare Guardianship : Welfare guardians make decisions regarding personal welfare, including healthcare, living arrangements, and day-to-day care. The focus is on ensuring the person's well-being and best interests are upheld. Financial Guardianship : Financial guardians manage an individual's financial affairs, including paying bills, managing assets, and making financial decisions on their behalf. This safeguards their financial well-being. How Is Incapacity Determined? Incapacity is not assumed; it must be established legally. The Act requires a medical or psychiatric assessment to determine an individual's capacity. The assessment must be conducted by a registered medical practitioner or psychiatrist. It is crucial to follow proper procedures to ensure that the person's rights are respected. Safeguarding Rights and Freedom The Act emphasizes the importance of respecting the individual's rights and freedoms to the greatest extent possible, even when they lack capacity. Decisions should be the least restrictive option and made in their best interests. Regular Review and Oversight Guardianship orders are not permanent. They can be reviewed by the court to ensure they remain necessary and in the person's best interests. If the individual's capacity improves, the guardianship may be terminated or modified. Conclusion Facing adult incapacity can be challenging, but Scotland has established a robust legal framework to protect and support vulnerable individuals. The Adults with Incapacity (Scotland) Act 2000 prioritizes the best interests of those who lack capacity while respecting their rights and freedom. Understanding this legal framework is essential for individuals, families, and professionals involved in caregiving and advocacy for vulnerable adults in Scotland. It ensures that the right balance is struck between protection and autonomy in challenging circumstances.

Mental Health Law in Scotland

04 Nov, 2018

The Mental Health (Care and Treatment) (Scotland) Act 2003 The cornerstone of mental health law in Scotland is the Mental Health (Care and Treatment) (Scotland) Act 2003 . This legislation outlines the principles and procedures governing the care and treatment of individuals with mental disorders. Key Aspects of the Act: Detention for Assessment and Treatment : The Act permits the detention and assessment of individuals who may pose a risk to themselves or others due to a mental disorder. This includes formal admission to psychiatric hospitals for evaluation and treatment. Mental Health Tribunals : Individuals subject to detention have the right to appeal to a Mental Health Tribunal. These independent bodies review detention cases to ensure that the person's rights are protected and that detention is justified. Compulsory Treatment Orders : The Act allows for Compulsory Treatment Orders (CTOs) in the community. This means that individuals can receive treatment while living in their own homes, rather than in a hospital setting, if it is deemed safe and appropriate. Advanced Statements : Individuals can create Advanced Statements outlining their preferences and wishes for treatment and care in case they lose capacity in the future. These statements are taken into account in decision-making processes. Consent to Treatment : The Act emphasizes the importance of informed consent for treatment whenever possible. In cases where an individual lacks capacity to give consent, decisions should be made in their best interests. Rights and Safeguards Mental health law in Scotland is designed to balance the need for treatment and care with respect for an individual's rights and dignity. Key rights and safeguards include: The right to appeal detention or CTO decisions to Mental Health Tribunals. The right to have a named person involved in the decision-making process. The requirement for regular reviews of detention cases. The emphasis on the least restrictive treatment options. Advocacy and Support Scotland provides advocacy services to individuals with mental health issues, ensuring they have access to information, representation, and support throughout the legal process. Advocates help individuals understand their rights and navigate complex legal proceedings. Conclusion Mental health law in Scotland is designed to strike a delicate balance between the need to provide care and treatment to those with mental disorders and the protection of their rights and dignity. The Mental Health (Care and Treatment) (Scotland) Act 2003, along with additional safeguards and advocacy services, ensures that individuals facing mental health challenges are treated with compassion, respect, and fairness within the legal system. Understanding these laws is crucial not only for individuals directly affected but also for their families, healthcare providers, and advocates. It ensures that mental health care is delivered in a way that promotes recovery, autonomy, and the overall well-being of individuals living with mental health conditions in Scotland.

Useful Information

Guidance on Guardianship Orders and Powers of Attorney

Power of Attorney

A Power of Attorney is prepared by you and allows you to plan how you would like another person to act on your behalf in the future, should you become incapable of making your own decisions. You can nominate a person as your Attorney to allow them to deal with money and property, to make decisions regarding your health or personal welfare matters or both. We can provide advice and guidance on what should be included in your Power of Attorney and thereafter prepare the written documentation. We also arrange for the Power of Attorney to be registered with the Office of Public Guardian in Scotland.

Legal Aid is often available for preparation of a Power of Attorney. We are happy to provide a no obligation service to assess your eligibility for free legal assistance. We also offer a fixed private fee for occasions when Legal Aid is not available.

Guardianship Orders

A guardianship order is granted by the court and provides authority to a person to make decisions on behalf of another where they are considered to be an ‘adult with incapacity’. An adult with incapacity is a person over the age of 16 who is not able to look after their own affairs due to mental disorder or inability to communicate because of physical disability. The law states that an adult will be deemed incapable to manage their affairs if they are incapable of acting on or making decisions, communicating decisions, understanding decisions or retaining memory of decisions.

There are three types of guardianship order:-

A financial order gives powers to deal with the adults property and financial affairs, including paying bills and dealing with bank accounts
A welfare order gives powers to make decisions about the adults personal welfare including where the adult will live and what care and support they will receive.
A combination of both financial and welfare powers. A guardianship order is generally applied for when decisions require to be made on an ongoing basis.

Legal aid is often available in respect of an application for guardianship. Eligibility for legal aid is based on the adult's income and assets and not the prospective guardian's. Civil Legal Aid is available where welfare powers are sought without the need for any financial assessment.

A guardianship order must have some benefit to the adult and be the least restrictive option available. For example, there are alternative methods available to manage an incapable adults finances including DWP Appointeeship and Access to Funds. Details of these can be found on the website of the Office of the Public Guardian Scotland (see link on our website).

We are happy to offer informal advice as to whether a guardianship order will help the adult in question and that it is appropriate for their circumstances. We can also carry out a no obligation assessment on eligibility for legal aid.

Intervention order

An intervention order is granted by the court and gives authority to a person to perform a one-off action on behalf of an adult with incapacity. This could include signing legal documents, including tenancy agreements, or selling the adults house. An intervention order lasts until the action is complete. If powers are required on an ongoing basis then a guardianship order may be more appropriate.

Legal aid is often available to apply for an intervention order.

Guidance on Mental Health Law

Legal powers can be used where someone is receiving treatment for a mental illness or disorder but do not agree with that treatment. Decisions can be made on their behalf as to when and how treatment is delivered, Aand when they can be kept in hospital against their will. There are a number of safeguards in place to ensure that where legal powers are used, an individual’s rights are protected.

Emergency Detention

Where a doctor recommends that someone’s condition should be assessed they can be held in hospital for up to 72 hours (3 days). During this time, they should not be given any treatment unless they agree with it, unless the treatment is considered to be required urgently. There is no right to appeal against emergency detention.

Short Term Detention

When further time is required for assessing and treating a suspected mental illness or disorder, a person can be detained in hospital for up to 28 days (4 weeks). A legal order known as a Short Term Detention Certificate (STDC) is issued if a Psychiatrist and a Mental Health Officer both agree that a patient meets certain legal criteria.

A STDC can be challenged by a patient or their Named Person or next of kin in certain circumstances. This is done by way of an appeal to the Mental Health Tribunal for Scotland. An independent Tribunal will be convened and panel of three members, consisting of a legal member (lawyer), medical member (psychiatrist) and general member, will hear evidence and decide whether the detention should continue. Legal aid is available to the patient and their Named Person irrespective of finances for any Tribunal proceedings and it may be possible to arrange for an independent psychiatric assessment.

Compulsory Treatment Order

Compulsory Treatment Orders impose measures to either detain a patient in hospital for the purpose of receiving treatment or to compel treatment to be received in the community.

An application for a Compulsory Treatment Order is made by a Mental Health Officer at the request of a treating psychiatrist. The Mental Health Officer will prepare a report and obtain two medical reports. A Mental Health Tribunal will be convened to hear the application. Legal aid is available to the patient and their Named Person irrespective of finances for any Tribunal proceedings and it may be possible to arrange for an independent psychiatric assessment.

Compulsory Treatment Orders can last up to six months and must be revoked when a psychiatrist comes to a view that the individual no longer meets certain legal criteria. If the Order is still in place after three months a patient or their Named Person can appeal to the Mental Health Tribunal and request that the Order be reviewed.

Court Imposed Orders

Compulsion Orders are imposed by a Sheriff at Court following a criminal case. These are initially made for a period of six months and a Tribunal will be fixed thereafter to review it. A Patient or their Named Person can oppose the extension of the Order and is entitled to legal representation.

Compulsion Order and Restriction Orders are granted by the court for an indefinite period of time. These will be reviewed annually by a patient’s psychiatrist and the Scottish Government. A Patient and their Named Person can also appeal against the orders.

Legal aid is available irrespective of finances for any Tribunal proceedings and it may be possible to arrange for an independent psychiatric assessment.

Links to other relevant sites

Office of the Public Guardian Scotland - https://www.publicguardian-scotland.gov.uk/

Self Directed Support Scotland - https://www.sdsscotland.org.uk/

Mental Welfare Commission for Scotland - https://www.mwcscot.org.uk/

Mental Health Tribunal for Scotland – https://www.mhtscotland.gov.uk/mhts/Home/Welcome_to_the_Mental_Health_Tribunal

Where we Operate

Our main areas of operation are Glasgow City, Glasgow Southside, North Glasgow, Paisley, Hamilton, East Kilbride, Coatbridge, Uddingston, Motherwell, Wishaw, Cumbernauld, Dumbarton, Stirling and Falkirk. If you are outwith any of these areas please do not hesitate to contact us to check our availability to travel to you.

272 Bath Street
Glasgow G2 4JR
T: 0141 354 8953
F: 0141 354 8954
E: contact@lesleygovanassociates.uk

Lesley Govan Associates Ltd Registered Office: 272 Bath Street, Glasgow, G2 4JR, registered in Scotland No. SC614433

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