Claiming for an adult who lacks capacity

When someone is injured so badly that they can no longer manage their own affairs — a severe brain injury, a stroke caused by negligent treatment, an illness affecting cognition — the family faces two problems at once. There is the injury itself, and there is the question of who is now allowed to make decisions.

This page explains how Scots law handles the second, in the context of a personal injury claim.

Who can act for the injured person?

An adult who lacks the capacity to instruct a solicitor cannot bring a claim personally. Someone must be legally authorised to act.

In Scotland that authority comes from the Adults with Incapacity (Scotland) Act 2000, which sets out how decisions can lawfully be taken for an adult who cannot take them. The routes most relevant to a claim are:

Guardianship order. Granted by the sheriff, appointing a guardian with welfare powers, financial powers, or both. For a personal injury claim you generally need a guardian with the relevant financial or property powers, since pursuing and settling a claim is a financial decision. Guardianship takes time to obtain — medical reports, a report from the local authority or the Office of the Public Guardian, and a court application — so it is worth starting early if it is likely to be needed.

Intervention order. A one-off authority for a specific act, rather than ongoing guardianship. Sometimes appropriate where the only decision needed is a discrete one.

Continuing power of attorney. If the adult granted a power of attorney before losing capacity, and it is registered with the Office of the Public Guardian and wide enough in its terms, the attorney may already have authority. A power of attorney cannot be granted after capacity is lost — this is why they matter so much, and why so many families discover too late that there isn't one.

Guardians and attorneys are supervised by the Office of the Public Guardian (Scotland), which oversees the handling of the adult's finances.

Capacity is not all-or-nothing

The 2000 Act works on the principle that capacity is decision-specific. Someone may be perfectly able to decide where to live but unable to manage a complex financial claim, or able to handle day-to-day money but not to weigh a settlement offer.

It can also fluctuate, and it can change over time — a person may recover capacity during a claim, or lose it. The question is not whether someone has "lost capacity" in the abstract but whether they can make this decision, now.

The Act also requires that any intervention benefits the adult, is the least restrictive option, and takes account of the adult's own past and present wishes so far as they can be ascertained. Acting for someone does not mean acting over them.

The time limit works differently

Under the Prescription and Limitation (Scotland) Act 1973, the ordinary three-year limitation period for personal injury does not run during any period in which the injured person is under legal disability by reason of unsoundness of mind.

In practice that means a claim is not automatically lost because years passed while the person was incapable of instructing anyone. This is a genuine and important protection, and it is one of the clearest instances where Scots law differs in detail from what generic UK guidance describes.

Do not treat it as a reason to wait. Two things get worse with time regardless of the limitation position:

• Evidence decays. Witnesses move and forget, CCTV is overwritten, records are destroyed on retention schedules. A claim that is legally alive can still be practically unprovable.
• Support is needed now. Interim payments, rehabilitation and care funding are only available inside a live claim. Delay defers all of it.

Whether the exception applies to a particular person is a legal question that turns on evidence about their condition. It is not something to assume.

What the claim can include

Where an injury has removed someone's capacity, the claim is usually substantial and often the largest financial decision the family will ever be involved in. Beyond solatium for the injury itself, it can include:

• Past and future loss of earnings, including lost pension
• The cost of care, whether bought in or provided by family members
• Case management and therapies
• Adaptations to the home, and specialist equipment
• The cost of the guardianship itself, and of managing the award

Claims of this kind are typically valued with expert evidence — medical, care, employment and often actuarial — because the losses run for the rest of the person's life. See our pages on serious injury claims and brain injury claims.

Protecting the money afterwards

Two things matter once compensation is in prospect.

Means-tested benefits. A lump sum counts as capital. A personal injury trust is often central in these cases, and needs to be considered before settlement rather than after — see benefits and compensation.

Ongoing management. A guardian with financial powers is accountable to the Office of the Public Guardian for how the award is managed. That supervision is a protection for the injured adult, and it is worth understanding what it will require before the money arrives.

Frequently asked questions

Can I bring a claim for my relative without being a guardian?

Generally no, if they lack capacity to instruct a solicitor themselves. A solicitor can advise on what authority is needed and help you obtain it, and can begin investigating while an application is in progress.

How long does guardianship take?

It varies and it is rarely quick — medical reports and a local authority or Public Guardian report are needed before the sheriff can decide. Start early if it is likely to be required.

We have a power of attorney. Is that enough?

Possibly, if it was granted before capacity was lost, is registered, and its terms are wide enough to cover pursuing and settling a claim. Have a solicitor read it rather than assuming.

Is the claim really not time-barred after three years?

The 1973 Act provides that time does not run while the person is under legal disability by reason of unsoundness of mind. Whether that applies is a question of evidence in the individual case. Take advice rather than relying on it.

Who decides whether to accept a settlement?

The guardian or attorney, acting in the adult's interests and within their powers. Significant settlements may require additional authority or court approval — your solicitor will advise on what is needed.

Sources

• Adults with Incapacity (Scotland) Act 2000
• Prescription and Limitation (Scotland) Act 1973
• Office of the Public Guardian (Scotland)
• Mental Welfare Commission for Scotland

Capacity and guardianship are technical areas and the detail matters. This page is general information; take advice from a solicitor about the individual circumstances.

Last reviewed: 4 September 2026 by the Personal Injury Claims Scotland editorial team