Applying for a guardianship or intervention order: guide for carers

Chapter 2 About the Adults with Incapacity (Scotland) Act 2000

Who the Act can help

The Act aims to help people (aged 16 and over) who lack capacity to make some or all decisions for themselves. It enables carers or others to have legal powers to make welfare, health care and financial decisions on their behalf.

An inability to make decisions in our lives can occur for a range of reasons. Disabilities such as dementia, brain injury or severe mental illness may limit our capacity to understand and appreciate what is involved in decision-making. People with a physical condition, such as a stroke or severe hearing impairment, may lack the capacity to communicate their decisions and need someone else to act for them. Being born with a learning disability may limit a person's ability to act or make some or all decisions for themselves, depending on the severity of the condition.

The Act also provides protection for individuals with impaired capacity who may be at risk of harm.

Making decisions

In common law, we all, as adults, have a right to make our own decisions. Others must assume that we have capacity to act and make decisions unless there is evidence otherwise. No one should be regarded as lacking capacity just because they make unwise, unusual decisions, or because they have a particular diagnosis, illness or condition.

Before the Act was introduced, capacity was 'all or nothing' - a person either had full capacity to make decisions or none at all. Someone deemed 'incapable' had few rights and the legal means available to carers were also limited, complicated and expensive.

The Act recognises that:

• capacity is 'decision-specific' - that someone may be capable of making certain types of decisions but not others and that this may depend on the complexity of decision to be made;
• a person's capacity may remain stable, improve, fluctuate or deteriorate.

Examples:

- the skills of some people with a learning disability may develop so that they are able to make decisions and act for themselves. For others, their abilities may decline over time (for example, some people with a learning disability may develop dementia in their middle years). People born with profound and complex learning disabilities may lack the ability to make any sort of informed decision throughout their lives.

- People with dementia have full capacity in the early stages, but capacity is gradually lost as the illness progresses. The rate of change and its effects will be different for each person. Someone may lose the ability to manage money but continue to be able to make health care decisions for much longer.

- People who have a severe and chronic mental illness may be able to make decisions some of the time but not when their illness reoccurs. In these circumstances someone may need to be given authority to make decisions for the person just during those times.

- People who have suffered a severe head injury may need someone to make most decisions for them following the accident, but may gradually recover and regain the ability to make all decisions for themselves.

What does incapacity mean?

In an everyday context, mental capacity means the ability to make decisions or take actions affecting daily life - when to get up, what to wear, what to eat, whether to go to the doctor when feeling ill, etc. In a legal context, it refers to a person's ability to do something, including making a decision, which may have legal consequences for the person themselves or for other people - such as:

• making a contract with someone;
• buying and selling things;
• deciding about medical treatment;
• managing money.

When does a person lack legal capacity?

The law says an adult lacks legal capacity to make a particular decision when there is evidence that he or she is unable to:

- understand the information relevant to the decision; or
- make a decision based on the information given; or
- act on the decision; or
- communicate the decision; or
- retain the memory of the decision.

A person is not to be treated as unable to make decisions unless all practical steps have been taken to assist the person to communicate. How information is presented can help or hinder someone to understand and make an informed decision.

Examples:

A tenancy agreement can be written in highly legalistic language, hard for any of us to understand. But some housing associations providing accommodation for people with a learning disability have found that by simplifying the wording and using visual ways to communicate, they have helped individuals to understand the agreement and give informed consent.

Someone with dementia may be able to give informed consent to a decision but may be unable to recall the decision due to short-term memory loss. In cases such as this the person should be supported with memory aids such as notes, pictures or a tape recording of previous discussions. You may find it helpful to access the Guide to Communication and Assessing Capacity. It is a web based publication only and can be downloaded from the Adults with Incapacity website at
http://www.scotland.gov.uk/Publications/2008/02/01151101/0

Summary of provisions for making financial and welfare decisions

The Act provides a range of ways to allow others to act or make decisions for an adult who lacks the ability to do so for themselves in relation to their financial affairs, health and personal welfare. These provisions include:

• joint (either or survivor) bank account - an arrangement that can be put in place with the bank or building society whilst someone still has capacity to give informed consent;
• financial and welfare powers of attorney - an arrangement that can be put in place whilst someone still has capacity to give informed consent;
• access to funds - a simple way of managing the day to day funds of someone who lacks capacity to do so - by applying to the Office of the Public Guardian (Scotland) (OPG);
• financial and welfare guardianship and intervention orders - details provided in this booklet;
• authority for doctors and other healthcare professionals to carry out
  medical treatment and research;
• the management of residents funds by care home managers (where there is no family member or friend available to do so).

These provisions can be tailored to meet the needs of the individual. For example, a person may only require Access to Funds for the management of their finances, but may need welfare guardianship to authorise a major change in care arrangements.

Further details of these provisions may be obtained from the Scottish Government and Office of the Public Guardian (see Appendix 5). The Act says that its provisions should only be used when necessary and if there is no other way for the adult to gain the benefit or protection needed. The principles provided in the Act (see below) are designed to help you decide what you need to do.

Can a carer make decisions without using the Act?

Carers can make all sorts of practical everyday decisions to support the person they care for. The principles provide a good checklist to help you keep the person as involved and independent as possible. These principles also apply to someone with powers of attorney. If you don't have power of attorney and the person is unable to manage their money, sign a legal contract or give informed consent to a major welfare decision, it will be necessary to consider whether you need to use the provisions of the Act.

It is strongly recommended that you approach the local authority area social services office (where the person lives) for advice and possibly an assessment of the adult's needs under the Social Work (Scotland) 1968 Act. It's best to do this at an early stage as it will help identify what sort of application/s you may need to make and identify issues or problems which could arise later in the application process.

Adults with Incapacity (Scotland) Act 2000

Principles

All decisions made on behalf of a person with impaired capacity must:

• benefit the adult
• restrict the adult's freedom as little as possible while still achieving the desired benefit
• take account of the adult's past and present wishes (providing every assistance to aid communication as appropriate to the needs of the individual)
• take account (as far as reasonable and practicable) of the views of
  others with an interest in the welfare of the adult
• encourage the adult to use existing skills and, where possible, develop new skills.