CHAPTER 1 ABOUT THE ADULTS WITH INCAPACITY (SCOTLAND) ACT 2000
This chapter sets out how a carer or another person can gain legal authority to support a person who lacks the ability to make some or all decisions for himself or herself. It briefly explains:
- who the Act can help
- the range of measures available
- what incapacity means under the Act
- the importance of the principles
- communicating with the person with incapacity
- the safeguards in place through the Public Guardian, courts, Mental Welfare Commission and local authorities
- Legal Aid.
WHO THE ACT CAN HELP
1.1 The Adults with Incapacity (Scotland) Act 2000 ('the Act') was introduced to protect individuals (aged 16 and over) who lack capacity to make some or all decisions for themselves. It covers people whose incapacity is caused by a mental disorder, such as severe 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 a severe sensory impairment. It supports their families and carers in managing and safeguarding the individuals' welfare and finances.
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 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 him/herself.
WHAT INCAPACITY MEANS UNDER THE ACT
1.4 'Incapable' is defined under the Act only for the purposes of the Act. The Act recognises that a person may be legally capable of some decisions and actions and not capable of others. The Act allows for intervention in a wide range of property, financial and welfare matters where the adult lacks capacity; but an intervention is only allowed where the adult lacks capacity in relation to the subject matter of the intervention.
1.5 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 decisions
in relation to any particular matter due to mental disorder or inability to communicate because of physical disability.
An individual will not fall within this definition solely because of a communication difficulty if that difficulty can be overcome, for example, through the use of an interpreter, equipment to assist communication or the help of a specialist professional, e.g. learning disability social worker, speech and language therapists. Similarly, memory loss due, for example, to dementia does not automatically mean that the person lacks capacity.
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:
Power 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 person's bank or building society account in order to meet his/her living costs. An application can be made to the Public Guardian by an individual 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 residents' funds (living in a care home or hospital) - 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 arrangement is in place to manage those 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 decisions - involving adults who cannot consent to take part in research may also be authorised subject to stringent safeguards and conditions.
1.7 The Act aims to ensure that solutions focus on the needs of the individual. For example, a person with dementia may be able to decide what sort of support he/she would prefer to help with day to day living, but be unable to manage his/her money. In such a case a financial intervention may be all that is needed. In other circumstances a combination of welfare and financial measures may be necessary.
Several people may be involved in supporting the adult through appointments under the Act or in other ways, e.g. as a Department for Work and Pensions appointee. 2 They should communicate with each other in carrying out their responsibilities.
1.8 Details about the above measures under the Act are provided in the relevant codes of practice and guides available from the Office of the Public Guardian (Scotland) ( OPG) and the Scottish Government - see Annex 3.
CO-EXISTENCE OF THE ACT WITH OTHER MEASURES
1.9 The Act does not authorise an intervention in every matter where the adult may have impaired capacity. There are certain decisions which can never be made on behalf of a person who lacks capacity to make those specific decisions. This is because they are either so personal to the individual concerned, or governed by other legislation. For example consent to marriage or making a will are not matters where an intervention under the Act would be competent.
The Act co-exists with other interventions in the affairs of the adult, for example the setting up of a trust for the benefit of the adult, a joint account which can be operated by any one of the account holders. In addition, a local authority may be able to provide services under the Social Work (Scotland) Act 1968 in certain circumstances to an adult who lacks capacity to consent to accept them.
PRINCIPLES TO BE FOLLOWED
1.10 The Act requires the following principles to be applied when deciding which measure 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.
Principle 1 - benefit
- Any action or decision taken must benefit the adult and only be taken when that benefit cannot reasonably be achieved without it.
Principle 2 - least restrictive option
- Any action or decision taken should be the minimum necessary to achieve the purpose. It should be the option that restricts the person's freedom as little as possible.
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 or 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 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 existing skills and to develop new skills
- Any guardian, continuing attorney, welfare attorney or manager of an establishment exercising functions under thinks 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 requirement for the categories of appointee stated above, it represents good practice for all others with decision making or management powers.
COMMUNICATING WITH THE PERSON
1.11 Principle 3 means that you, as the guardian or intervener, must take account of the person's present and past feelings and wishes so far as you are able to ascertain these. Some adults 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, the person may continue to have opinions about a particular item of household expenditure without being able to carry out the transaction personally.
1.12 In some cases special effort may be required to communicate with the person. This could mean using memory aids, pictures, non-verbal communication or advice from a speech and language therapist. (See Guide to Communicating with the adult with incapacity in Annex 1).
Deciding when a person needs the help of the Act
1.13 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 a person 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 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 3).
1.14 A formal assessment of capacity will be needed in relation an application under the Act. For further details on getting a medical certificate to accompany an application for an intervention or guardianship order, see Annex 2.
BODIES INVOLVED IN REGULATION OF INTERVENERS AND GUARDIANS
1.15 The appointment of an intervener or guardian is, in effect, imposed on an adult by the sheriff. It is essential for the sheriff to take into account the adult's wishes and feelings about such an appointment. As the adult's agreement to the appointment is not required, it is necessary to provide appropriate protection for the adult, and for third parties who conduct business with an intervener or guardian in place of the adult. In order to ensure such protection, the Act provides for various bodies to be involved in the regulation of interveners and guardians in the exercise of their functions. These are the Public Guardian, the courts, the local authority, and MWC.
The Public Guardian (Scotland)
The Public Guardian has a number of functions under the Act including:
- establishing, maintaining and making available to the public, on payment of the prescribed fee, registers of all documents relating to:
- intervention and guardianship orders under Part 6 of the Act;
- powers of attorney; and
- access to funds;
- providing guidance and non-legal advice to anyone considering applying for an intervention order in relation to property or financial affairs, or for financial guardianship;
- sending notification of registration of welfare powers of attorney to local authorities and the MWC. Both the MWC and local authorities will be able to request a copy of the document;
- supervising any guardian or any intervener in the exercise of his or her functions relating to the property or financial affairs of the adult;
- receiving and investigating any complaints regarding the exercise of functions relating to the property or financial affairs of an adult made in relation to guardians, interveners, withdrawers and attorneys;
- requesting records and information from financial interveners, guardians and withdrawers as required; requesting information and records from fundholders;
- investigating any circumstances in which the property or financial affairs of an adult seem to he to be at risk;
- when requested to do so, providing a guardian, intervener, withdrawer or continuing attorney with information and advice;
- consulting with the MWC and any local authority where there is a common interest;
- initiating or taking part in court proceedings when to do so appears to be necessary to safeguard the property or financial affairs of an incapable adult.
1.16 Most of the judicial proceedings under the Act will take place in the sheriff court. The sheriff will make specific orders under the Act. Section 3 of the Act gives the sheriff wide and flexible powers to:
- make orders consequential or ancillary to specific orders made under the Act. The sheriff may also impose conditions and restrictions on orders granted;
- make interim orders where quick action may be needed while the court works to resolve an issue in full;
- vary an order;
- order that the adult be assessed or interviewed;
- give directions to an intervener or guardian under section 3(3). The adult and anyone else claiming an interest in the adult's affairs (including the intervener or guardian) are entitled to apply to the court for such a direction. This provides an important method of resolving disputes and difficulties about how to exercise powers under the Act, and it will be referred to later in this code.
The Court of Session has a role if there are appeals against sheriffs' decisions, and in determining certain medical treatment matters.
The adult may not be able or may not wish to appear in court, or may not be able to represent his or her own interests. The sheriff may in such circumstances appoint a person to safeguard the adult's interests, and may, if appropriate, also appoint a person to convey the adult's views to the court. Sheriffs must take account of the adult's views as expressed by a person providing an independent advocacy service.
1.17 Local authorities have a major role in looking after the welfare of adults with impaired capacity. This role includes:
- supervising welfare guardians in the exercise of their powers;
- supervising interveners with powers relating to personal welfare if ordered to do so by the sheriff;
- consulting the Public Guardian and the MWC where they share common interests;
- investigating complaints about the exercise of welfare powers;
- investigating any circumstances made known to them in which the personal welfare of an adult seems to them to be at risk;
- providing information and advice in connection with the performance of functions under the Act relating to personal welfare;
- applying for welfare guardianship, or for the appointment of someone as financial guardian, or for a financial intervention order, where necessary and no one else is putting forward an application;
- acting as intervener, or welfare guardian, where necessary and no-one else is suitable or prepared to do so.
The Mental Welfare Commission for Scotland
1.18 The MWC has a role in protecting the interests of adults with incapacity. This role is only in relation to those whose incapacity is the result of mental disorder. The MWC has no role in relation to adults whose incapacity is due solely to an inability to communicate because of physical disability, except in certain cases, where it would have to nominate a medical practitioner due to disagreement over medical treatment.
The MWC has:
- a duty to consult the Public Guardian and local authorities where there are cases or matters of common interest;
- a duty to provide a guardian, welfare attorney or intervener with information and advice in connection with the performance of his or her functions in relation to personal welfare under the Act;
The MWC has powers to:
- visit adults on whose behalf others are acting under the Act;
- investigate complaints about the exercise of welfare powers, where the Commission is dissatisfied with local authority action or where the local authority has failed to act;
- investigate any circumstances made known to it in which the welfare of the adult seems to be at risk, even if there is no complaint;
- investigate any circumstances made known to them in which the property of the adult may, by reason of the mental disorder of the adult, be exposed to a risk of loss or damage.
PROVISIONS RELATING TO NEAREST RELATIVE
1.19 Under section 4(1) of the Act it is possible for anyone, (including the adult him/herself), who has an interest in the adult's property, financial affairs or personal welfare to apply to the sheriff to have the nearest relative displaced, or to have information withheld from the nearest relative. Such applications cannot be made in advance of any incapacity.
Displacement or withholding of information from nearest relative
1.20 On an application the court may, having regard to the principles and being satisfied that to do so will benefit the adult, make an order that:
- certain information shall not be disclosed, or intimation of certain applications shall not be given, to the nearest relative of the adult;
- the functions of the nearest relative of the adult shall, during the continuance in force of the order, be exercised by a person, specified in the application, who is not the nearest relative of the adult but who:
- is a person who would otherwise be entitled to be the nearest relative in terms of this Act;
- in the opinion of the court is a proper person to act as the nearest relative; and
- is willing to so act; or
- no person shall, during the continuance in force of the order, exercise the functions of the nearest relative.
1.21 If you are appointed as an intervener or guardian you will need to be aware if any order has been made displacing the nearest relative. You will also need to know if someone else has been ordered by the sheriff to replace the nearest relative. This is so that you know who you need to consult when making a major decision on behalf of the adult. If you are not sure about whether or not the nearest relative has been displaced or replaced you should contact the sheriff court nearest to where the adult lives or seek advice from the OPG.
LIMITATION OF LIABILITY
1.22 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 WITH INCAPACITY FROM ABUSE?
1.23 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 guardian, intervener or withdrawer;
- the possibility of displacing of the nearest relative as described in paragraphs 1.20-21 above;
- 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 a complaint is 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.It is an offence for anyone exercising welfare powers under the Act to ill treat or neglect an adult. The penalties for someone found guilty on summary conviction of the offence under the Act are up to 6 months imprisonment or a fine of up to £5,000. Someone convicted of the offence on indictment may be imprisoned for up to 2 years or given an unlimited fine.
1.24 An adult, someone authorised to act on his or her behalf under the Act, or anyone claiming or having an interest in the adult's welfare or affairs may be eligible for legal aid. For example, costs may be incurred in making an application to the courts or in seeking legal advice. Two sorts of legal aid are available in relation to the Adults with Incapacity (Scotland) Act 2000.
Advice and Assistance
- will be 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 by someone other than the adult, the financial eligibility test will be assessed on the resources of the adult and not the applicant.
Civil Legal Aid
- will be available without a means-test in respect of applicants for an intervention or guardianship order 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, the Board will look at the income and capital of the adult;
- will be available for all other proceedings, including appeal proceedings under the Act (subject to the usual statutory tests of financial eligibility, probable cause of action and reasonableness).
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
1.25 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; a 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. See Useful Addresses at Annex 3. You can also consult the Scottish Government's website at: http://www.scotland.gov.uk/topics/justice/civil/awi