Adults with Incapacity Amendment Act: consultation

Part 4: Management of Residents' Finances

Part 4 of the AWI Act concerns adults who reside in authorised establishments who lack the capacity to manage their financial affairs. Authorised establishments are defined in the AWI Act as health service hospitals, independent hospitals or private psychiatric hospitals, the state hospital, care home services and limited registration services. Part 4 provides a mechanism for managers of those establishments to manage finances to a limited extent on the adult's behalf. Reports from various healthcare providers indicate limited instances of the application of Part 4 in practice.

To assess the uptake of Part 4 of the AWI Act, we contacted all health boards across Scotland to find out how often and in what circumstances part 4 was used. We received no information to suggest Part 4 was being used at all.

We met with the Care Inspectorate, who are the supervisory body responsible for care homes under Part 4. They advised us that there are no users of Part 4 in the care home sector for a variety of reasons. Using Part 4 to manage the finances of residents who lack capacity is resource-intensive, requiring additional staff training and ongoing monitoring. But care homes do not receive any compensation or reimbursement for these added responsibilities. Care homes see the use of Part 4 as a financial burden rather than a beneficial service to their residents.

Care homes have also said that staff have found Part 4 too complex due to the intricate legal requirements, administrative burdens, and nuanced decision-making processes involved. There is limited capacity to train staff and assessment procedures can be disproportionately time-consuming. Disputes between residents, families, and staff can further complicate implementation. Overall, the complexity often deters care homes from adopting Part 4 for financial management.

Guardianships and intervention orders have often been favoured over Part 4 due to their tailored approach and their familiarity within the legal and healthcare systems. However applying to the Sheriff Court for guardianships and intervention orders can be time consuming and costly. Our proposals for reform of Part 3 of the AWI Act relating to the ATF scheme will allow authorised establishments to apply under that scheme. We think this will allow a more flexible approach to be applied by authorised establishments, with the safeguard of supervision by the OPG.

In response to the above, we propose removing Part 4 from the AWI Act due to its low uptake, complexity, and the availability of alternative mechanisms like ATF, guardianships and intervention orders. This streamlining would simplify decision-making, reduce administrative burdens, and ensure more accessible support for individuals with incapacity.

Questions:

34. Do you support the proposal to remove Part 4 from the AWI Act?

35. Do you think alternative mechanisms like the ATF scheme, guardianships and intervention orders adequately address the financial needs of adults with incapacity living in residential care settings and hospitals?