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Caring for an adult with incapacity

What does the Act do?
Intervention and Guardianship Orders
What does it cost?
Who can apply?
Joint Guardianship
What if no-one is willing to be appointed?
How are the Adult's interests protected?
What does the Code of Practice cover?
Where can I get further information?
Access to Funds
Complaints to the Public Guardian
Find Out More

There are key pieces of legislation that affect the provision of care for an adult with incapacity.  These are:

 

The Adults with Incapacity (Scotland) Act 2000 provides measures to safeguard the welfare and manage the finances of adults who lack capacity to make some or all decisions for themselves from whatever cause.  It creates a range of provisions for helping people

  • plan for their future in the event they lose capacity
  • intervene to help an adult who has lost capacity for making decisions about their property, finances or welfare

 

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What does the Act do?

The Act provides methods of intervening (that is, taking decisions or actions) on behalf of an adult (aged 16 or over) who lacks capacity to take some or all decisions for themselves because of mental disorder or inability to communicate.  It allows other people to make decisions on behalf of these adults, for safeguarding their welfare and managing their finances and property.

The Act

  • Establishes the Office of the Public Guardian
  • Defines 'incapacity'
  • Establishes fundamental principles
  • Makes provision for a range of welfare and financial interventions
  • Establishes statutory responsibilities for Local Authorities and the Mental Welfare Commission

 

Office of the Public Guardian

  • Created as a consequence of the Act
  • It is part of the Supreme Courts and as such part of the Scottish Court Service
  • Opened on 26 March 2001 and located in Falkirk
  • Current Public Guardian is Sandra McDonald

 

Role of Public Guardian

  • Maintain a register of continuing and welfare powers of attorney and those granted authority to access funds
  • Supervision of Guardians and Interveners
  • Approve Management Plan/Inventory
  • Review Financial Records
  • Consent to Decisions
  • Provide information and guidance
  • Investigate complaints

 

Capacity

  • The law of Scotland presumes that adults (people aged 16 or over) are legally capable of making personal decisions for themselves and of managing their own affairs
  • Only where there is evidence of impaired capacity can this presumption be overturned

 

Incapacity

  • The act allows for intervention in a wide range of property, financial or welfare matters where an adult lacks capacity
  • Intervention is only permitted where an adult is incapable of making decisions in relation to the issue relevant to that intervention

 

Incapacity as defined by the Act

  • Adults over 16
  • Incapable, by means of mental disorder, or inability to communicate because of physical disability of
  • Acting, or
  • Making decisions, or
  • Communicating decisions, or
  • Understanding decisions, or
  • Retaining memory of decisions

 

An adult shall not fall within the this definition of incapacity only by reason of a lack or deficiency in communication if it can be overcome by some other means, be that human or mechanical aid (whether it is of an interpretive nature or otherwise).

Principles of the Act

  • Section 1 of the Act provides a set of fundamental principles which must be given effect in relation to any intervention in the affairs of an adult
  • These principles must be adhered to before any authority is granted under the Act.  Those granted authority under the Act must apply these principles in relation to each intervention they make

 

All interventions made on behalf of an adult must

  • Benefit the adult
  • Be the minimum necessary to achieve the purpose
  • Take account of the adult's past and present wishes and feelings (and you must try every possible means of communicating with the adult to find out what these are)
  • Restrict the adult's freedom as little as possible while still achieving the purpose
  • Encourage the adult to use existing skills or develop new skills
  • Take into account the views of the adult's nearest relative and primary carer, and of any other person with powers to intervene in the adult's affairs or personal welfare, or others with an interest in the adult's welfare, so far as it is reasonable and practicable to do so.

 

You should also consider whether it would be possible to intervene without using the Act.

Under the Act a number of different agencies are involved in supervising those who take decisions on behalf of the adult

  • The Office of the Public Guardian has a supervisory role and keeps registers of attorneys, people who can access an adult's funds, guardians and intervention orders
  • Local authorities look after the welfare of adults who lack capacity
  • The Mental Welfare Commission protects the interests of adults who lack capacity as a result of mental disorder

 

Under the Act, the main ways that other people can make decisions for an adult with impaired capacity are

Power of Attorney

Individuals can arrange for their welfare to be safeguarded and their affairs to be properly managed in future, should their capacity deteriorate.  They can do this by giving another person (who could be a relative, carer, professional person or trusted friend) power of attorney to look after some or all of their property and financial affairs and/or to make specified decisions about their personal welfare, including medical treatment.  An adult must have capacity in order to make a power of attorney.

All continuing and welfare powers of attorney granted since 2 April 2001 need to be registered with the Public Guardian to be effective.

Funds of residents in Care Homes

Since April 2003, authorised care establishments can manage a limited amount of the funds and property of residents who are unable to do this themselves. 

Medical treatment and research

The Act allows treatment to be given to safeguard or promote the physical or mental health of an adult who is unable to consent.  Special provisions apply where others such as attorneys have been appointed under the Act with powers relating to medical treatment.

Where there is disagreement a second medical opinion can be sought.  Cases can also be referred to the Court of Session in certain circumstances.  The Act also permits research involving an adult incapable of giving consent but only under strict guidelines. 

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Intervention and guardianship orders

Individuals can apply to their local Sheriff Court on behalf of the adult with incapacity for

  • An intervention order where a one-off decision or short term help is required (for example selling property or signing a document)
  • A guardianship order, which may be more appropriate where the continuous management of affairs or the safeguarding of welfare is required

 

Intervention Orders

You must apply to the local Sheriff Court for an intervention order.  This would normally be suitable where you have to deal with a single issue on behalf of an adult where the outcome can be predicted.  This could, for example, be a financial or property transaction, or a legal action on behalf of an adult such as signing a document or going to court.  The Sheriff would have to be satisfied that the adult is incapable with regard to the matter in question, and there is no other suitable means of dealing with the matter.  Intervention orders will most commonly be suitable for financial and property matters, but they could also be suitable for some personal welfare matters.  They can also cover both financial and welfare matters.

Guardianship Orders

You must apply to the local Sheriff Court for a guardianship order.  Guardianship can cover property and financial matters or personal welfare, or a combination of these.  It is likely to be suitable where the adult has long-term needs in relation to these matters and has lost, or has never had, capacity to take decisions or action on these matters for him or herself.  The Sheriff would have to be satisfied that the adult is incapable with regard to the matters in questions, and that there is no other suitable means of safeguarding or promoting the adult's interest in these matters. 

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What does it cost?

There will be a fee to the court for your application.  There will be fees to the medical practitioners for providing reports of incapacity.  There will be no fee to a Local Authority Social Work Department, but there may be a fee to a person with sufficient knowledge to make a report on an application relating to financial affairs or property.  You will be able to recover the costs from the adult's estate, provided you ask the Sheriff to order this.  Legal Aid may be available, based on the adult's means.

Who can apply?

Any person, including a professional person, can be authorised under an intervention order.  You can apply for an intervention order, but nominate someone else to be authorised, such as a lawyer, if you do not want to nominate yourself. 

Local authorities or any person claiming an interest in the adult's affairs may make applications for intervention and guardianship orders.

Any individual can be appointed to be a guardian, but where there is no-one willing to be appointed, and guardianship is necessary to safeguard an adult's personal welfare, the Chief Social Work Officer of the Local Authority must be appointed.  A private individual could be nominated as financial guardian, or a professional such as a solicitor, accountant or banker.  A professional appointment may be preferable if the adult has a large estate and complex affairs.

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Joint Guardianship

It is possible for the Sheriff to appoint two or more people as joint guardians, and to appoint a substitute guardian who would take over if the first guardian can no longer act.

What if no-one is willing to be appointed?


The Local Authority must apply for guardianship where it is necessary and no-one else is doing so.  If no-one is willing to be appointed guardian to deal with property and financial affairs, you can get advice from the Office of the Public Guardian or a voluntary organisation which offers a trustee service for adults with incapacity.  However, if after seeking this advice no-one is willing to apply, the Local Authority has a duty to make the application and to identify someone prepared to take on the role of financial guardian.  It is also possible that the adult's affairs could be satisfactorily dealt with by intervention orders or measures outwith the Act.

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How are the Adult's interests protected?

The report which the court receives will examine the appropriateness of the order sought and the suitability of the person nominated.  The court can ask for evidence and further reports on these matters.

All intervention orders and guardianship orders are registered with the Public Guardian.  The Public Guardian supervises the exercise of powers over financial affairs and property and will normally require financial guardians to submit regular accounts.  The Local Authority Social Work Department supervises welfare guardians.  Those exercising welfare powers under an intervention order will be supervised if the Sheriff so orders.  The appropriate authority will investigate complaints against persons exercising powers under intervention or guardianship orders and powers can be modified or revoked.

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What does the Code of Practice cover?

The codes of practice are for those people and organisations that have functions given to them by the Act.  The codes provide guidance on the legislation itself and offer further practical information.

The code of practice sets out the legal requirements for intervention orders and guardianship orders to be made.  It also:

  • gives guidance on how to decide whether an order is needed, and which order is needed
  • makes suggestions on the types of powers that could be included in an order. It tells you how to go about applying and getting the necessary reports
  • gives guidance on how to exercise your powers once you have them, and on keeping records
  • explains how supervision works and what will happen if things go wrong
  • explains what you need to do if there is a change in circumstances, and how to go about renewing your powers when the order is nearing the end of its terms
  • explains what happens if the adult no longer requires a guardian and your powers need to be recalled

 

Copies of the Code of Practice can be obtained from the Scottish Government at the following address:

Law Reform Division
2 West
Scottish Government
St Andrew's House
Regent Road
Edinburgh
EH1 3DG
Tel: 0131 244 3581

Copies of the Code of Practice can be downloaded from the Scottish Government.

For more information, visit the Office of the Public Guardian's website 

You can also find out more and download a leaflet on Adults with Incapacity from the Scottish Government website.

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Where can I get further information?

See the Scottish Government's website pages on Adults with Incapacity.

The Office of the Public Guardian
Hadrian House
Callander Business Park
Falkirk
FK1 1XR
Tel: 01324 678300
Website: http://www.publicguardian-scotland.gov.uk/

The Mental Welfare Commission for Scotland
Thistle House
91 Haymarket Terrace
Edinburgh, EH12 5HE
Tel: 0131 313 8777 or 0800 389 6809
Website: http://www.mwcscot.org.uk

The Law Society of Scotland
26 Drumsheugh Gardens
Edinburgh
EH3 7YR
Tel: 0131 226 7411
Website: http://www.lawscot.org.uk/

Enable Scotland
2nd floor
146 Argyle Street
Glasgow
G2 8BL
Tel: 0141 226 4541
Website: http://www.enable.org.uk/

Scottish Association for Mental Health
Brunswick House
51 Wilson Street
Glasgow
G1 1UZ
Tel: 0141 530 1000
Website: http://www.samh.org.uk

ASCS - Advice Service Capability Scotland
11 Ellersly Road
Edinburgh
EH12 6HY
Tel 0131 313 5510
Textphone/Minicom 0131 346 2529
Website: http://www.capability-scotland.org.uk

Alzheimer Scotland - Action on Dementia
22 Drumsheugh Gardens
Edinburgh
EH3 7RN
Tel 0131 243 1453
Website: http://www.alzscot.org

Dementia Helpline
Freephone 0808 808 3000

See also Alzheimer Scotland's Money and Legal Matters Guide

Age Scotland
Causewayside House
160 Causewayside
Edinburgh
EH9 1PR
Tel 0845 125 9732

Website: http://www.ageconcernandhelptheagedscotland.org.uk

Age Scotland is the new force combining Age Concern Scotland and Help the Aged in Scotland.

Sense Scotland
43 Middlesex Street
Kinning Park
Glasgow
G41 1EE
Tel: 0141 429 0294
Website: http://www.sensescotland.org.uk


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Access to Funds

The Adults with Incapacity (Scotland) Act 2000 sets out the legal framework, in Scotland, for intervening in the affairs of adults (people aged 16 or over) who lack the capacity to take some or all decisions for themselves.

Part 4 of the Act came into force on 1 October 2003 and created a new system for managers of authorised establishments' to manage finances of adults who lack the capacity to take some or all decisions for themselves. Authorised establishments, which the Care Inspectorate regulates are care homes, independent and private psychiatric hospitals and limited registration services.  The Care Inspectorate is a supervisory body in relation to Part 4. This means they receive notifications of a manager's intention to manage a person's finances. They can also make inquiries into how managers are using Part 4.

Individuals (normally relatives or carers) can apply to the Public Guardian to gain access to the funds of an adult incapable of managing those funds, even if they don't know what their funds are.  This applies to funds held in, for example, a bank or building society account in the sole name of the adult.  The Act also includes provisions to allow access to a joint account to continue where one account holder has become incapable of managing the funds. 

The Act sets out the following provisions:

Financial Provisions

  • Joint bank accounts
  • Continuing Power of Attorney
  • Intervention Orders
  • Guardianship
  • Access to Funds
  • Managing Residents Finances

 

Welfare Provision

  • Welfare Power of Attorney
  • Welfare Guardianship
  • Welfare Intervention Order
  • Medical Treatment

 

Joint Bank Accounts

  • The Act makes provision to enable a joint account holder to continue to manage the account in the event that the other joint account holder becomes incapable
  • Joint account holders will need to sign an 'either or survivor' mandate so that the other person can continue managing the account if one loses capacity

 

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Complaints to the Public Guardian

Sometimes people who become unable to manage their finances or property may have previously granted powers to enable someone they know to make decisions in this area for them (a "power of attorney"). People can also apply to have access to the bank account of someone with incapacity in order to pay their bills ("access to funds"), and can do this with evidence that the person with incapacity cannot manage their own finances, even if they don't have the person's permission.

If you feel that a person with these powers is not exercising them in an appropriate way - if you suspect that he or she is acting fraudulently, or not in the best interests of the person with incapacity - you can complain to the Office of the Public Guardian, which holds records of everyone who has been granted these powers.
 
The Public Guardian also holds records of welfare attorneys - people who have been nominated previously by the adult to look after their welfare when they become unable to do so themselves - but complaints about welfare attorneys should be directed to the complaints department of the local authority social services department, and to the Mental Welfare Commission if you are dissatisfied with the outcome.

The adult with incapacity may be the subject of a guardianship or intervention order, financial or welfare or both, which provides legal authority for someone to make decisions and act on behalf of a person with impaired capacity in order to safeguard and promote their interests.  Guardianship and intervention orders are registered with the Office of the Public Guardian, which supervises financial guardians.  The Public Guardian will investigate complaints on financial matters, while local authorities will deal with welfare concerns. 

For more information, contact:

The Office of the Public Guardian
Hadrian House
Callendar Business Park
Callendar Road
Falkirk
FK1 1XR
Tel: (01324) 678 300
Fax: (01324) 678 301
E-mail: opg@scotcourts.gov.uk
Website: http://www.publicguardian-scotland.gov.uk


Find out more

Alzheimer Scotland - Money and Legal Matters Guide

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last updated 03/05/2012