Adults with incapacity: guide to assessing capacity

Appendix 4: Adults with Incapacity (Scotland) Act: provisions and principles

1 How the Act can help

The Act provides the following ways for managing and safeguarding a person's welfare, financial affairs or both:

Powers of attorney - this is a means by which individuals, whilst they have capacity, can grant someone they trust powers to act as their continuing (financial) and/or welfare attorney, in case capacity is lost at some future point. One or more persons can be appointed.

Access to Funds scheme - this is a way of accessing the adult's bank or building society account in order to meet his/her normal living costs. An application can be made to the Public Guardian by an individual or organisation. The person or organisation appointed is called a 'withdrawer'.

Guardianship order (welfare and/or financial) - may be applied for by one or more individuals acting together or local authority and granted by the sheriff. This is appropriate where the person requires someone to make specific decisions on their behalf over the long term. Financial guardianship may be appropriate where the person's finances are complex.

Intervention order (welfare and/or financial) - may be applied for by an individual or local authority and granted by the sheriff to carry out a one-off action or to deal with a specific issue on behalf of the adult.

Management of (care home) residents funds - A certificate of authority may be granted to a care home manager by the supervising body (local authority or health board) where the resident lacks capacity to manage his/her own funds and there is no other individual willing or able to do so.

Medical treatment decisions - a doctor is authorised to provide medical treatment and care to someone who is unable to consent, subject to certain safeguards and exceptions.

2 Principles to be applied

The following principles must be applied when deciding whether a measure under the Act is necessary and if so, which will be the most appropriate to meeting the needs of the individual. The principles must also be applied by anyone appointed with powers under the Act when a decision needs to be taken on behalf of the individual. It is also recognised good practice that the principles should be applied in relation to all decision-making for a person with impaired decision-making capacity, regardless of whether he/she has a proxy under the Act.

Principle 1 - benefit

• any action or decision taken must benefit the adult and only taken when that benefit cannot reasonably be achieved without it.

Principle 2 - least restrictive

• any action or decision taken should be the option that restricts the person's freedom as little as possible but at the same time enables the purpose of the action to be achieved.

Principle 3 - take account of the past and present wishes and feelings of the adult

• In deciding if an action or decision is to be made, and what that should be, account shall be taken of the present and past wishes and feelings of the adult, as far as they can be ascertained. The person should be offered appropriate assistance to communicate their views ( for further guidance see Appendix 1).

Note: that it is compulsory to take account of the present and past wishes and feelings of the adult if these can be ascertained by any means whatsoever.

Principle 4 - consultation with relevant others

• In deciding if an action or decision is to be made and what that should be, account shall be taken of the views of: the nearest relative and the primary carer of the adult; the adult's named person ⁵; any guardian or attorney with powers relating to the proposed intervention; any person whom the sheriff has directed should be consulted; any other person appearing to have an interest in the welfare of the adult or the proposed action, where these views have been made known to the person responsible - in so far as it is reasonable and practicable to do so.

Principle 5 - encourage the adult to exercise whatever skills he or she has and to develop new skills as far as possible.