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An Overview of The Adults With Incapacity (S) Act 2000
This Act makes substantial changes to the law relating to people who may be legally appointed to act for an adult (aged 16 and over) who is incapable of making legal decisions for himself or herself. The Act recognizes that people have varying levels of capacity and moves away from the idea that an appointee needs to take over all decision-making. The concept of incapacity is “task specific” in that the Act requires that capacity is assessed for each intervention. If an adult has capacity to make some decisions, it is unlikely that a person will be authorized to intervene in these matters, but they may be authorized to intervene in matters where the adult is “incapable” of acting. The list of possible appointments under the Act is:
In addition, the Act makes provision for doctors to treat an incapable adult without consent. The provisions relating to continuing powers of attorney, welfare powers of attorney and authority to deal with funds came into force on 2nd April 2001. The provisions relating to doctors giving medical treatment The provisions relating to guardianship orders which will replace tutors-dative, curators bonis and mental health guardians, came into force in April 2002. (Note that existing appointments became guardians from April 2002 with the powers they already had, BUT are subject to the overarching principles). The provisions relating to intervention orders came into force in April 2002. The provisions relating to management of funds by managers of establishments come into force in April 2003. The DSS appointee system is not part of The Adults With Incapacity (S) Act 2000 and will continue as before. The definition of “incapable” is: incapable of acting or making decisions or communicating decisions or understanding decisions or retaining the memory of decisions in relation to any particular matter, by reason of mental disorder or of inability to communicate due to physical disability.
The Act contains general overarching principles which apply to the WHOLE act: Principle 1 – Benefit Principle 2 – Minimum Intervention Principle 3 – Take Account of the Wishes of the Adult Principle 4 – Consultation With Relevant Others Principle 5 – Encourage the Adult to Exercise Whatever Skills He or She Has
Continuing and Welfare Attorneys (In force April 2001) The general principles in Section 1 apply to continuing and welfare attorneys.
Continuing Powers of Attorney Express a clear intention that it is intended to continue after loss of legal capacity Incorporate a certificate from a solicitor or other prescribed person that the granter has been interviewed immediately prior to signing the document and that the granter understands the nature and content of the document and is not acting under undue influence. Be registered with The Public Guardian before it can come into effect.
Welfare Powers of Attorney Express a clear intention that it is intended to cover welfare matters. Incorporate a certificate from a solicitor or other prescribed person that the granter has been interviewed immediately prior to signing the document and that the granter understands the nature and content of the document and is not acting under undue influence. Be registered with The Public Guardian before it can come into effect. It cannot be used until the granter has lost legal capacity in relation to the matters covered by the power of attorney.
A welfare attorney may not: Give consent to any treatment covered by The Mental Health (Scotland) Act 1984. A continuing or welfare power of attorney may contain a condition that The Public Guardian shall not register it until the occurrence of a particular event Continuing and welfare attorneys are required to keep records of the exercise of their powers. This does not apply to persons acting under powers of attorney made before April 2001.
The Sheriff may make orders: that the continuing attorney submit accounts to The Public Guardian for audit that the welfare attorney shall be subject to supervision by the local authority that any of the powers of a continuing or welfare attorney be revoked that a continuing or welfare power of attorney be revoked
Authority to Intromit With Funds (In force April 2001) The person who wishes to be appointed must complete a form available from The Public Guardian. The application must specify: The purpose for which the funds will be used The names and addresses of the nearest relative and primary carer of the adult The account from which money is to be transferred and an undertaking to open the designated account. The application must be accompanied by a medical certificate certifying incapacity. The Public Guardian must notify the adult, the nearest relative and the primary carer of the application and they may raise objections. The Public Guardian may refer to application to the sheriff for determination. There is a right of appeal against a decision to grant or refuse an application. If the application is granted, The Public Guardian will issue a certificate of authority stipulating that the withdrawer may open a designated account and how much money may be transferred from the adult’s account to that designated account and at what intervals. The authority may be for up to 3 years. A designated account may not be overdrawn and the withdrawer must keep records of transactions on the account.
Guardianship Orders (In force April 2002) Where there is a need for continuing intervention, a person claiming interest in the incapable adult may apply to the sheriff to be appointed as a guardian. Two medical reports certifying incapacity are required. In addition, for welfare guardianship, a report from a Mental Health Officer (mental disorder) or Chief Social Work Officer (all other cases) is required. For financial guardianship, a report from a person with sufficient knowledge of the appropriateness of the order and the suitability of the nominee is required. It is possible to appoint 2 or more persons as joint guardians or a guardian and a substitute. The court will consider the suitability of the nominated guardian and issues such as: Are they aware of the incapable adult’s circumstances and needs? Are they aware of the role of a guardian and able to carry out their functions? Are they accessible to the incapable adult and the primary carer? Are there any conflicts of interest or undue concentrations of power?
A guardian will usually be appointed for 3 years, but other periods are possible. The guardian’s powers will be strictly tailored to the needs of the incapable adult. This is the highest level of intervention. Guardians with financial powers will be subject to supervision and scrutiny by the Public Guardian. Guardians with welfare powers will be subject to supervision by the local authority and subject to scrutiny by either the local authority or the Mental Welfare Commission. The local authority has a duty to apply for guardianship where it appears necessary, but no one else applies.
Intervention Orders (In force April 2002) Where there is a need for intervention, but not on a continuing basis, a person claiming interest may apply to the sheriff for an intervention order authorizing the particular intervention. These orders may cover welfare and/or financial matters. The reports required are the same as for guardianship orders. This type of short term intervention could be used, for example, where a property had to be sold, but the owner no longer had capacity to sign the documents. A person acting under an intervention order is subject to the general principles in Section 1 of the Act.
Management of Funds by Managers of Residential Establishments (In force April 2003) If there is no one to manage the funds of an incapable adult, the manager of a residential establishment may obtain a medical certificate certifying that the resident is incapable of managing his or her own funds. The manager then notifies the supervisory body that he or she intends to manage the resident’s funds. The medical certificate must be renewed after 3 years. The manager is permitted to deal with the following matters: Claiming, receiving, holding and spending any pension, benefit or allowance or payment other than under The Social Security Contributions and Benefits Act 1992. Claiming, receiving, holding and spending any money to which the resident is entitled. Holding any other moveable property to which the resident is entitled and disposing of such property. Managers will have to keep records and will be subject to the general principles of the Act.
Treatment Without Consent (In force July 2002) The Act makes provision for doctors to certify that an adult is incapable of consenting to medical treatment and to proceed to treat without consent, as long as the treatment is in the best interests of the patient. If the patient has a guardian or welfare attorney, that person should be consulted about the treatment. Certain treatments such as ECT and medication for mental disorder lasting more than 3 months are likely to be excluded from this authority to treat without consent.
Further information on the Act is available from: The Office of the Public Guardian The Scottish Executive web page: www.scotland.gov.uk/justice/incapacity The Mental Welfare Commission Deborah Baillie
© Copyright 2002 by Camphill Scotland, and reproduced with their kind permission. This information about the Adults with Incapacity (Scotland) Act 2000 contains a general description of the law, but it is not intended to be a statement of the law or a substitute for proper legal advice. Camphill Scotland has made every effort to ensure that the information is correct, but neither Camphill Scotland or Advocacy Service Aberdeen accept any responsibility for any inaccuracies. Camphill's principal role is to work with people who have special needs. For over 60 years, Camphill has recognised the different needs of individuals and has responded to requests of finding different ways to meet them, by creating a variety of communities with children, young people or adults of all ages. For more information, visit their website at www.camphillscotland.org.uk. |
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