Annex 2 Techniques covered by other parts of the Act
The Act introduces some new or modified techniques for managing the property and financial affairs and taking decisions about the welfare of adults. This code describes briefly below all such techniques because they may impinge at different times on the functions of practitioners. It does not, however, deal with these techniques in any detail. They are covered in other codes of practice and in regulations made under the Act.
Power of attorney
Under part 2 of the Act an adult may anticipate his or her own incapacity by granting a power of attorney relating to his or her property or financial affairs ( a continuing power of attorney) or his or her personal welfare. The latter power of attorney is called a welfare power of attorney. To be effective a power of attorney must be registered with the Public Guardian (see below). The Public Guardian will only register a power of attorney if it incorporates a certificate in prescribed form to the effect that the granter understood the nature and extent of the power and was not acting under undue influence. This certificate is prescribed in the Adults with Incapacity (Certificates in Relation to Powers of Attorney) (Scotland) Regulations 2001 (Scottish Statutory Instrument 2001 No. 80). A doctor may on occasion be asked by a solicitor for assistance in assessing the capacity of a potential granter. Doctors may later be involved in helping to assess when a specific event, such as the onset of incapacity, has occurred in order to determine at what point a power of attorney becomes effective.
A welfare power of attorney can only be operated after an adult loses capacity in relation to the welfare decision in question. A welfare power of attorney can include powers to consent to (or to refuse) medical treatment but a welfare attorney may not:
- place the granter in hospital for treatment of mental disorder against his or her will; or
- consent on behalf of the granter to treatment to which Part 16 of the Mental Health (Care and Treatment) (Scotland) Act 2003 applies.
Intromission with funds
Under Part 3, an individual may apply to the Public Guardian for authority to intromit with (have access to) funds held by the adult with a body such as a bank or building society, for the purposes of meeting the adult's living expenses. Medical practitioners will be called upon to certify in connection with such an application that the adult is incapable in relation to decisions about the funds, or incapable of acting to safeguard or promote his interests in the funds. The form of this certificate is prescribed in the Adults with Incapacity (Certificates from Medical Practitioners) (Accounts and Funds) (Scotland) Regulations 2001 (Scottish Statutory Instrument 2001 No. 76). They may also be called on to countersign the application confirming that the applicant is a fit and proper person to have access to the funds (but this would have to be done by a different doctor from the one signing the medical certificate).
Management of residents' finances
Part 4 of the Act, which is effective from October 2003, allows registered establishments to manage the financial affairs of residents with impaired capacity up to a prescribed limit. A practitioner must be asked by the managers of a registered establishment to issue a certificate in prescribed form to the effect that the resident in question is incapable in relation to decisions as to, or the safeguarding of his or her interest in, the relevant financial affairs. This part is effective from April 2003. The responsibilities and accountability of the manager of a registered establishment are detailed in the Management of residents' Finances Information Leaflet. The leaflet can be accessed on the Scottish Government website at http://www.scotland.gov.uk/library5/justice/awimrf-00.asp
Intervention orders and guardianship
Under Part 6, it is possible to apply to the sheriff for an intervention order to deal with clearly defined financial, property or personal welfare matters in relation to an adult on a one-off basis. Guardianship can include powers over property, financial affairs or personal welfare or a combination of these. In this code a guardian with powers over financial affairs and property is referred to as a "financial guardian" and a guardian with powers over personal welfare is referred to as a "welfare guardian". Persons authorised under an intervention order, and welfare guardians, may be given power by the sheriff to make decisions about medical treatment on behalf of the adult, subject to the same exceptions as apply to welfare attorneys. Part 6 of the 2000 Act came into force on 1 April 2002.
Medical practitioners have formal responsibility for providing reports of incapacity in relation to applications for intervention orders or guardianship. At least two such reports are needed for each application. In a case where the cause of incapacity is mental disorder, one of these reports must be made by a medical practitioner approved for the purpose of section 22 of the 2003 Act.
Situations where intimation to the adult is not required
Under various provisions in the Act, where intimation or notification to the adult would normally be required by the court or the Public Guardian, such intimation may be dispensed with if intimation or notification would be likely to pose a serious risk to the health of the adult. This will normally require the evidence of two medical certificates. Good practice would suggest that intimation to the adult should only be dispensed with in the most exceptional circumstances.