The Adults with Incapacity (Scotland) Act 2000 ('the Act') was introduced to protect individuals with incapacity and to support their families and carers in managing and safeguarding the individuals' welfare and finances. The Act was one of the earliest pieces of legislation passed by the Scottish Parliament. A two-year project was funded by the Executive to monitor how the Act was working. The results were positive, but showed that some improvements could be made 1 to streamline procedures and enable more adults and their carers to benefit from the Act.
Since 2004 several changes to the Act have been introduced. This revised code of practice takes account of the amendments made to part 6 of the Act.
WHO THE CODE OF PRACTICE IS FOR
This code is for anyone who is authorised under an intervention order or guardianship order. In this code 'you' means you as the intervener or guardian. The code applies equally to a lay person and to a professional such as a solicitor or accountant. If you are a professional, you will also need to apply your own code of conduct, professional ethics and good practice, and follow professional regulatory requirements in relation to your duties as an intervener or guardian.
Status of the code
Section 13 provides that Scottish Ministers must prepare codes of practice containing guidance for those exercising functions under the Act. This code is for persons authorised under Part 6 of the Act.
Whilst these codes of practice are guidance and therefore not binding, failure to comply with them may be one of the factors considered by the Public Guardian, the Mental Welfare Commission, the local authority or the sheriff in considering matters such as the continuing suitability of the person to exercise those functions, in investigating circumstances in which the adult appears to be at risk or in applications before the court.
Health and social work professionals with duties and responsibilities in relation to the implementation of the Act will also need to familiar with this code.
What does this code of practice cover?
The code of practice sets out:
- the background to the Act and the principles that must be followed;
- the legal requirements for intervention orders and guardianship orders to be made;
- how to decide whether an order is needed;
- the types of powers that could be included in an order;
- how to go about applying and getting the necessary reports;
- guidance on how to exercise your powers once you have them, and on keeping records;
- how supervision works and what will happen if things go wrong;
- what you need to do if there is a change of circumstances;
- how to go about renewing your powers when the order is nearing the end of its term; and
- what happens if the adult no longer requires a guardian and your powers need to be recalled.
- Throughout the code of practice the Adults with Incapacity (Scotland) Act is referred to as the 'the Act'.
- 'adult' refers to the person aged 16 and over with impaired capacity - also referred to as the 'person' or 'individual' in this code.
- 'carer' refers to a partner, spouse, relative or friend who cares, in an unpaid capacity, for an adult.
- 'primary carer' means the person who is the main carer (usually a family member or friend) but, where there is no unpaid main carer it could be an organisation mainly engaged in the day to day provision of care for the person.
- 'named person' means the person nominated by the adult under the Mental Health (Care and Treatment) Scotland Act 2003. The named person can represent the adult's interests or support him or her. This is automatically the primary carer where the person had not named someone else.
- 'relevant others' is used to refer to the nearest relative or anyone nominated by the sheriff to act in place of the nearest relative, the named person, primary carer and any other person with an interest in the welfare and financial affairs of the adult (such as a health or social work care manager).
- ' intimation' - term used for informing relevant parties (nearest relative, carer, primary carer, named person and anyone else with an interest in the welfare of the adult) of an application and allowing the opportunity for comment or objection.
- 'independent advocate' this is someone employed by an independent advocacy service to support the adult in having his/her views and wishes heard. This is different from a legal advocate who represents someone at court.
- 'caution' this is bond which serves as a type of insurance to safeguard the adult form loss caused by the actions of the guardian or intervener.
- 'security' this means an alternative to caution to provide adequate protection to the adult's estate.
- 'interlocutor' is an order or decision of the court.
- 'order' is used where reference applies to both intervention and guardianship orders.
- ' MWC' is the abbreviation for the Mental Welfare Commission for Scotland.
- ' OPG' is the abbreviation for the Office of the Public Guardian (Scotland).
- ' MHO' is the abbreviation for a Mental Health Officer.
- 'practising solicitor' is a solicitor holding a practising certificate in accordance with Part 2 of the Solicitors (Scotland) Act 1980 (c.46).