Adults with incapacity: code of practice for those authorised to access funds

Introduction

The Adults with Incapacity (Scotland) Act 2000 ('the Act') was introduced to protect individuals with incapacity and to provide support for their families and carers in managing and safeguarding the individuals' welfare and finances. The Act was one of the earliest pieces of legislation passed by the Scottish Parliament. A two-year project was funded by the Executive to monitor how the Act was working. The results were positive, but showed that some changes could be made ¹ to streamline procedures and enable more adults and their carers to benefit from the Act. In particular major changes have been made to the Access to Funds scheme to widen access to the scheme and to provide more flexibility in how the adult's funds can be used and managed for his/her benefit.

The revised edition of the code of practice for those authorised to access funds, takes into account of changes to Part 3 of the Act, introduced in Part 2 of the Adult Support and Protection (Scotland) Act 2007. It has been prepared in collaboration with the Office of the Public Guardian.

About this code of practice

This code is for use by both individuals and organisations who have been authorised by the Public Guardian under Part 3 of the Act to withdraw funds from the account of an adult and apply them for the adult's benefit. A person authorised to do so is referred to as the 'withdrawer'. A supplementary document is available for organisations outlining the information required to support their suitability for the purpose of acting on behalf of an adult.

The code will also be of interest to agencies providing information and advice to carers, other family members and service users.

In this code 'you' means 'you' as withdrawer or, as the text implies, a prospective withdrawer. Although, under the Act, the code strictly applies only when you start to exercise your functions of withdrawer, for completeness it also covers the initial stages, when you are thinking of applying to access the adult's funds.

The Act uses the expression 'to intromit with funds' which simply means to deal with money. This code refers to the 'access to funds scheme', meaning the arrangements set out in Part 3 of the Act to intromit with funds.

The Act provides in section 13 that the Scottish Ministers will prepare codes of practice containing guidance for those exercising powers under the Act. Whilst these codes of practice are guidance and therefore not binding, failure to comply with them may be one of the factors considered by the Public Guardian, the Mental Welfare Commission, the local authority or the sheriff in considering matters such as the continuing suitability of the person to exercise those functions, in investigating circumstances in which the adult appears to be at risk or in applications before the court.

Health and social work professionals with duties and responsibilities in relation to the implementation of the Act will also need to familiar with this code.

TERMS USED

• Throughout the code of practice the Adults with Incapacity (Scotland) Act is referred to as the 'the Act'.
• 'adult' refers to the person aged 16 and over with impaired capacity - also referred to as the person or individual.
• 'access to Funds' is a means of managing the funds of an adult funds for his/her benefit. Sometimes referred to as 'intromission with funds'.
• 'withdrawer' - term used for a person or organisation with authority from the Public Guardian to access the funds of an adult for his/her behalf.
• 'organisation' refers to any 'body' approved or seeking approval to access funds. 'Body' is the term used in the Act.
• 'fundholder' refers to the bank or building society where the adult has his/her account.
• 'Certificate of Authority' - A document issued by the Public Guardian which gives the fundholder authority to do whatever is specified in the certificate, e.g. to provide information about an adult's account; to transfer funds as directed in the certificate; and the withdrawer authority to use the funds.
• 'carer' refers to a partner, spouse, relative or friend who cares, in an unpaid capacity, for an adult.
• 'primary carer' means the person who is the main carer (usually a family member or friend) but, where there is no unpaid main carer it could be an organisation mainly engaged in the day to day provision of care for the person.
• 'named person' means the person nominated (under the Mental Health (Care and Treatment) (Scotland) Act 2003, by the adult to represent his/her interests or give support. This is automatically the primary carer where the person has not named someone else.
• 'intimation' - term used for notifying relevant interested parties, nearest relative carer, primary carer, named person if there is one and anyone else with an interest in the welfare of the adult) of the application and allowing the opportunity for comment or objection.
• 'proxy' is the general term used to refer to someone authorised under the Act to make decisions or act on behalf of the adult with impaired capacity. This includes: attorneys; withdrawers under the access to funds scheme, guardians; and people authorised under an intervention order.
• 'independent advocate' this is someone employed by an independent advocacy service to support the adult in having his/her views and wishes heard. This is different from a legal advocate who represents someone at court.
• 'practising solicitor' is a solicitor holding a practising certificate issued in accordance with Part 2 of the Solicitors (Scotland) Act 1980 (c.46).

Methods of payment

• Direct Debit - This is an instruction from a customer to a named institution authorising that institution to collect varying amounts from the customer's account at regular intervals until cancelled, e.g. to pay mortgage or utility bills. The institution must advise the customer how much and when such payments will be taken.
• Standing Order - This is an instruction from a customer to his/her bank to pay a set amount, to a named institution, at regular intervals either for a specific period of time or until cancelled, e.g. transfer set amount monthly to savings account.

If you have any queries about the Access to Funds scheme please contact:

Office of the Public Guardian (Scotland)
Hadrian House
Callendar Business Park
Falkirk Fk1 1xr
Telephone: 01324 678300
Fax: 01324 678301
E-Mail: opg@scotcourts.gov.uk