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Information for Parents and Relatives of Adults (Age 16 and Over)
In general law, no adult (even if related) has an automatic right to make legal decisions (including decisions about medical treatment) on behalf of another adult. This may appear particularly confusing for parents who often assume that having made legal decisions for a child up to the age of 16, they will continue to do so after the age of 16. Some confusion also arises in the context of medical treatment where doctors often lead "next of kin" to believe that they have authority to give consent or refusal on behalf of an adult who cannot make the decision for himself or herself. In law, the position of "next of kin" carries no legal authority. Doctors should consult "next of kin" as a matter of courtesy and as a means of ascertaining the views of the adult, if that adult is not in a position to express a view. There are provisions in The Adults With Incapacity (Scotland) Act 2000 allowing doctors to treat an adult who cannot consent and has no one legally appointed to consent for him or her. If you attempt to make legal decisions on behalf of another adult when you have no legal authority, you may find that other people, for example, an independent advocate, will challenge you. There is a clear distinction between the right to be consulted and to express a view about matters affecting an adult and the right to make legal decisions on behalf of an adult. The Adults With Incapacity (Scotland) Act 2000 sets out the law relating to adults who are incapable of making legal decisions and those who may be legally appointed to act for them. 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. Incapacity must be assessed in relation to each decision, since an adult may have capacity to make some decisions, but may need help with more complex issues. If you need to make legal decisions on behalf of an adult you may apply under the Act to the sheriff court to be appointed as a guardian for that adult. The sheriff must decide whether you are suitable and appropriate to be appointed and will take into account whether you understand the needs of the adult and whether you are seeking too much power or control. If you are appointed as a guardian you will only be given the powers that the sheriff thinks are necessary and you must comply with the principles set down in the Act. These are: 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 If appointed as a guardian, you will be subject to supervision and scrutiny by The Mental Welfare Commission (if you have welfare powers) and/or The Public Guardian (if you have financial powers).
Further information is available from: The Office of the Public Guardian
The Scottish Executive web page:
The Mental Welfare Commission
Advocacy Service Aberdeen would like to thank Camphill Scotland for giving permission for this leaflet to be adapted from one of a series of leaflets on The Adults With Incapacity (Scotland) Act 2000. Information about the whole series of leaflets is available from: The leaflets are now available on the Advocacy Service Aberdeen web site at www.advocacy.org.uk |
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