In this section you will find further information on:
An adult or someone authorised to act on his or her behalf under the Adults with Incapacity (Scotland) Act 2000, or anyone having an interest in the adult's welfare or affairs, may apply for legal aid.
Advice and assistance may be available to people seeking legal advice from a solicitor on any aspect of the Act, subject to the financial eligibility tests. Advice and assistance is provided directly by a solicitor after a quick and simple assessment of the adult's financial circumstances.
Civil legal aid may be available to people seeking legal representation for court proceedings under the Act, subject to the normal tests of financial eligibility, probable cause and reasonableness. An application for civil legal aid can only be made through a solicitor who will assist in the completion of the application form. The solicitor will then forward the application form and all the relevant documentation to the Scottish Legal Aid Board. On receipt of the application, the Board must satisfy itself that the application meets the statutory tests. If these tests are met, then civil legal aid will be granted. From 1 August 2006 there will be no means test applied by the board in cases relating to either welfare powers only or a combination of welfare and financial powers.
The financial eligibility test for legal aid will apply to the resources of the adult, and not of the applicant:
- where an application for advice and assistance or civil legal aid is being made by a person authorised to represent the adult under the Act (i.e. people who are interveners, guardians, curators ad litem, or are acting under a power of attorney)
or
- where an application for civil legal aid is being made by a person having an interest in the affairs of the incapable adult (e.g. a friend, a relative or a carer) and wishing to obtain an order with financial powers only under the Act.
Frequently asked questions on legal aid for proceedings under the act
Q: Is legal aid available for proceedings under the AWI Act?
A: YES, advice and assistance is available on any aspect of the Act and civil legal aid is available for court proceedings.
Q: Do I have to pay to get legal aid?
A: For advice and assistance it is the adult's assets that are taken into account. This is also the case for civil legal aid and applies to court proceedings for orders with financial powers only. From 1st August 2006, there will be no means test for applications relating to either welfare powers only or a combination of welfare and financial powers.
Q: What are the financial eligibility limits for legal aid?
A: To be financially eligible for advice and assistance, the incapable adult's weekly disposable income must not exceed £189, and the adult's disposable capital must not exceed £1,300. To be financially eligible for civil legal aid, the adult's annual disposable income must not exceed £9,188, and the adult's disposable capital must not exceed £10,000. However, the eligibility rules for proceedings under the Act are more complex than the summary given in this section. Your solicitor will be able to tell you if the adult is eligible for advice and assistance. If you apply for civil legal aid, the Scottish Legal Aid Board will carry out a full assessment of the adults financial situation and will tell you if the adult is eligible. Where the adult's assets are above the eligibility level and this is because the funds constiute compensation for current and future care, the board may be able to take this into account.
Q: What kind of financial resources do I need to know about for financial eligibility purposes?
A: Pension book, benefit book, savings, bank statements, etc.
Q: How do I find more information about the availability of legal aid for proceedings under the AWI Act?
A: You can contact the Scottish Legal Aid Board or you can speak to a solicitor who does legal aid work, staff in Citizens Advice Bureaux or visit the Scottish Legal Aid Board website at www.slab.org.uk.
Q: Where do I find a solicitor who does legal aid work?
A: The board has a list of solicitors firms which are registered to provide civil legal assistance. You can also contact the Board to obtain more information about legal aid. Solicitors who undertake legal aid work usually display the legal aid logo.