Adults with Incapacity applications – Whose resources should you assess?

Thursday, Aug 14, 2014

We receive enquiries from practitioners about whether a financial assessment is required in cases where an application is being made in respect of an incapable adult, when the subject matter is Adults with Incapacity and, if an assessment is required, whose resources should be taken into account. It is also an issue which is commonly identified in Quality Assurance reviews as being done incorrectly by firms.

The position differs slightly depending on whether the matter is being dealt with under Advice and Assistance or Civil Legal Aid:

  • In Advice and assistance a financial assessment is required in all cases.
  • In civil legal aid an assessment is required when an order is sought only in respect of property and financial matters.
  • If an order is sought either only for personal welfare or for both personal welfare and property and financial matters, no financial assessment is required.
  • In both Advice and Assistance and Civil Legal Aid the resources to be assessed are those of the incapable adult.

Full details and links to the relevant legislative provisions are contained in the Civil Legal Assistance Handbook.

For more information:

Joe Kelly, Head of Civil and Children’s Legal Assistance, 0131240 2031

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