Chapter 1: ABOUT THE ADULTS WITH INCAPACITY (SCOTLAND) ACT 2000
WHO THE ACT CAN HELP
1.1 The Act aims to help people (age 16 and over) who lack capacity to act or make some or all decisions for themselves. It covers people whose incapacity is caused by a mental disorder, such as dementia, learning disability, acquired brain injury, or severe mental illness. It also covers people who are unable to communicate due to a physical condition such as a stroke or severe sensory impairment. The Act supports their carers and others in managing and safeguarding the welfare and finances of the person.
1.2 The Act introduced arrangements for making decisions about personal welfare and managing the finances and property of individuals whose capacity to make or carry out specific decisions is impaired. It allows carers and others to have authority to act and make decisions on their behalf.
1.3 The law in Scotland generally presumes that adults (those aged 16 or over) are legally capable of making personal decisions for themselves and of managing their own affairs. That presumption can only be overturned on evidence that the person lacks capacity to make a decision. It is important to remember that having a diagnosis of, for example, dementia, does not mean, of itself, that the person is unable to make decisions for them.
What the Act says about someone lacking capacity
1.4 The Act recognises that a person may be capable of taking some decisions and actions but not others.
1.5 The Act says that a person lacks capacity to make a particular decision when there is evidence that he/she is unable to do so.
For the purposes of the Act 'incapable' means incapable of:
- acting on decisions; or
- making decisions; or
- communicating decisions; or
- understanding decisions; or
- retaining the memory of the decision
in relation to any particular matter due to mental disorder or inability to communicate because of physical disability.
No one should be treated as unable to make or act on a decision unless all practical steps have been taken to assist him or her. How information is presented can help or hinder someone to make a decision. The person should not be considered as 'incapable' simply because he or she has a poor memory or short-term memory loss. For example, someone with dementia may be able to consent to a decision but may not be able to remember a decision made earlier. He/she should be assisted with memory aids such as notes of previous discussions. For further information on communicating with the person with impaired capacity, see Annex 1.
HOW THE ACT CAN HELP
1.6 The Act provides the following ways for managing and safeguarding a person's welfare, financial affairs or both:
Powers of attorney - this is a means by which individuals, whilst they have capacity, can grant someone they trust powers to act as their continuing (financial) and/or welfare attorney, in case capacity is lost at some future point. One or more persons can be appointed.
Access to Funds scheme - this is a way of accessing the adult's bank or building society account in order to meet his/her normal living costs. An application can be made to the Public Guardian by an individual, individuals or organisation. The person or organisation appointed is called a 'withdrawer'.
Guardianship order (welfare and/or financial) - may be applied for by one or more individuals acting together or local authority and granted by the sheriff. This is appropriate where the person requires someone to make specific decisions on his or her behalf over the long term. Financial guardianship may be appropriate where the person's finances are complex.
Intervention order (welfare and/or financial) - may be applied for by an individual or local authority and granted by the sheriff to carry out a one-off action or to deal with a specific issue on behalf of the adult.
Management of (care home/hospital) residents funds - A certificate of authority may be granted to a care home manager by the supervising body (local authority or health board) where the resident lacks capacity to manage his or her own funds and there is no other proxy or person with powers in respect of the funds.
Medical treatment decisions - a doctor is authorised to provide medical treatment and care to someone who is unable to consent, subject to certain safeguards and exceptions. In addition, certain other health care practitioners, if accredited to do so, have authority to provide treatments which they are qualified to administer.
Medical Research involving adults who cannot consent is authorised subject to safeguards and conditions (for further details see Code of Practice for persons authorised to carry out medical treatment or research under Part 5 of the Act).
1.7 Where several people are involved in supporting the adult through appointments under the Act or in other ways, e.g. as a Department of Work and Pensions ( DWP) appointee, they should collaborate with each other in carrying out their responsibilities.
For details of the above measures under the Act are provided in the relevant codes of practice and guides - see Annex 4.
Principles to be followed
1.8 The Act requires the following principles to be applied when deciding which method will be most suitable for meeting the needs of the individual. The principles must also be used whenever decisions need to be made on behalf of the adult. The Act aims to protect people who lack capacity to make particular decisions, but also to support their involvement in making decisions about their own lives as far as they are able to do so. A decision or action should only be taken when the person is unable to do so for him or herself.
Principle 1 - benefit
- Any action or decision taken must benefit the adult and only taken when that benefit cannot reasonably be achieved without it.
Principle 2 - least restrictive
- Any action or decision taken should be the option that restricts the person's freedom as little as possible but at the same time enables the purpose of the action to be achieved.
Principle 3 - take account of the wishes of the adult
- In deciding if an action or decision is to be made, and what that should be, account shall be taken of the present and past wishes and feelings of the adult, as far as they can be ascertained. The person should be offered appropriate assistance to communicate his/her views (for further guidance see Annex 1).
Note: it is compulsory to take account of the present and past wishes and feelings of the adult if these can be ascertained by any means whatsoever.
Principle 4 - consultation with relevant others
- In deciding if an action or decision is to be made and what that should be, account shall be taken of the views of: the nearest relative and the primary carer of the adult; the adult's named person; 2 any guardian or attorney with powers relating to the proposed intervention; any person whom the sheriff has directed should be consulted; any other person appearing to have an interest in the welfare of the adult or the proposed action, where these views have been made known to the person responsible - in so far as it is reasonable and practicable to do so.
Principle 5 - encourage the adult to exercise whatever skills he or she has and to develop new skills
- Any guardian, continuing attorney, welfare attorney or manager of an establishment exercising functions under the Act shall, in so far as it is reasonable and practicable to do so, encourage the adult to exercise whatever skills he or she has concerning property, financial affairs or personal welfare, as the case may be, and to develop new such skills. While this is a legal requirement only for the categories of appointee stated above, it represents good practice for all others with decision making or management powers.
COMMUNICATING WITH THE PERSON
1.9 Principle 3 means that you, as the withdrawer, must take account of the person's present and past feelings and wishes so far as possible. Some individuals will be able to express their wishes and feelings clearly, even although they would not be capable of taking the action or decision which you are considering. For example, a person may continue to have opinions about a particular item of household expenditure without being able to carry out the transaction personally.
In some cases special effort may be required to communicate with the person. This might mean using memory aids, pictures, non-verbal communication, advice from a speech and language therapist. (See Guide to Communication in Annex 1.)
Deciding when the adult needs the help of the Act
1.10 If you are unsure about the needs of the person you are concerned about or if the Act can help, it is advisable to contact the local authority social work department in the area where the person lives. The local authority has a duty to assess the needs of an adult who may lack capacity due to a mental disorder or severe communication difficulty caused by a physical condition. You can also seek advice and information from the Office of the Public Guardian (Scotland) ( OPG) on financial matters and from the Mental Welfare Commission ( MWC) on welfare matters. Specialist voluntary organisations may also be able to help (see Annex 4).
1.11 A formal assessment of capacity is needed in relation to applications under the Act. For further details on obtaining a medical certificate to accompany an Access to Funds application see chapter 3, paragraphs 3.15-18.
1.12 The following statutory bodies provide important safeguards for adults with incapacity: the OPG, the MWC, local authorities and the courts. The OPG is the main body which regulates the access to funds scheme.
The Office of the Public Guardian (Scotland) ( OPG)
The Public Guardian has a wide range of powers under the Act, to:
- authorise access to funds, register withdrawers and issue certificates;
- provide information and advice (non-legal) on financial matters in relation to the Act;
- register powers of attorney, intervention and guardianship orders;
- supervise financial guardians and withdrawers;
- supervise continuing (financial) attorneys where ordered to do so by the sheriff;
- investigate complaints against anyone authorised to manage the finances of an adult.
With regard to Access to Funds, the Public Guardian is responsible for giving information and advice to withdrawers about their role and what they need to do. You can ask the Public Guardian for guidance if you need it. The Public Guardian will also provide direction where joint withdrawers disagree.
The Mental Welfare Commission ( MWC)
The MWC has an important role in protecting the interests of adults with incapacity due to mental disorder. It provides a range of good practice guidelines and a freephone helpline for service users and carers (see Annex 4).
The Local Authority
Local authorities have a duty to assess the needs of people who may lack capacity to make some or all important decisions for themselves and to provide information to carers who have been appointed as attorneys or guardians. They have a duty to intervene to protect the personal welfare and or finances of an adult when no one else is doing so. For example, if an individual with dementia living at home has no one to help manage his/her finances, the local authority could apply to access funds or arrange for a voluntary organisation to do so.
The sheriff is responsible for the appointment of guardians and interveners. The court also deals with appeals under the Act and with serious complaints against those appointed under the Act.
1.13 Legal advice or representation is not needed to apply to access funds or to request financial information from the adult's fundholder because this is authorised by the OPG and not the courts. However, if you feel that powers to make welfare decisions on behalf of the person may be necessary, you should consider applying for a welfare guardianship order through the courts and may wish to engage a solicitor to represent you. Two sorts of legal aid are available under the Adults with Incapacity Act.
- Advice and Assistance
is available, subject to the statutory financial eligibility test being satisfied, to enable people to seek advice from a solicitor on any aspect of the Act. It is the solicitor who applies the financial eligibility test in respect of applications for legal aid for Advice and Assistance. Where the application is being made in respect of the adult with incapacity the financial eligibility test will be assessed on the resources of the adult and not the applicant.
- Civil Legal aid
is available without a means-test in respect of applicants for intervention or guardianship orders which include welfare powers or a mix of welfare and financial powers. In this case the solicitor applies to the Scottish Legal Aid Board ( SLAB) who decides if the application meets the eligibility criteria. Where there is no welfare element and the application is for financial powers only, SLAB will look at the income and capital of the adult.
The SLAB website www.slab.org.uk provides information by region on solicitors registered for legal aid work. A fact sheet on the Adults with Incapacity Act and legal aid is available at http://www.scotland.gov.uk/topics/justice/civil/awi.
Limitation of liability
1.14 Section 82 of the Act provides that no liability shall be incurred by a guardian, a continuing attorney, a welfare attorney, a person authorised under an intervention order, a withdrawer or the managers of a residential establishment for any breach of any duty of care or fiduciary duty owed to the adult if he, she or they have:
(a) acted reasonably and in good faith and in accordance with the principles; or
(b) failed to act and the failure was reasonable and in good faith and in accordance with the principles.
This is a crucial provision which emphasises the importance of anyone exercising powers under the Act being fully familiar with the principles and applying them properly to decisions and actions taken.
HOW DOES THE ACT PROTECT THE ADULT FROM ABUSE?
1.15 The Act provides a number of safeguards for adults through the roles and functions of the statutory bodies described above and in other ways. These include checks on the suitability of the proposed withdrawer, guardian or intervener; a formal assessment of the adult's capacity; and the registration of all appointments with the OPG. The Act makes provision for investigations and where complaints are upheld, a range of measures may be taken. In serious cases the OPG, MWC and/or local authority will refer the matter to the sheriff court.
1.16 If you are unsure about the needs of the person you care for and whether the provisions of the Act will help, there are several sources of help: the local authority social work department in the locality of the adult; the Citizen's Advice Bureau, or a specialist voluntary organisations. The OPG will provide advice on financial matters in relation to the Act and the MWC has a helpline to deal with welfare queries where the person has a mental disorder. (Annex 4, Useful Addresses.) You can also consult the Scottish Government's website at: http://www.scotland.gov.uk/topics/justice/civil/awi.