Continuing and welfare attorneys: code of practice

Introduction

The Adults with Incapacity (Scotland) Act 2000 ('the Act') was introduced to protect individuals with incapacity and to support 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.

This revised edition of the code of practice for continuing and welfare attorneys takes account of changes to the Act that were introduced in part 2 of the Adult Support and Protection (Scotland) Act 2007.

About this code of practice

This code is for anyone appointed as an attorney under the Act, that is, as continuing and/or welfare power of attorney. In this code 'you' means you as an attorney or, as the context implies, a prospective attorney (apart from Chapter 2 which is addressed to prospective granters of powers of attorney). The code applies equally to a lay person and to a professional continuing attorney such as a solicitor or accountant. If you are a professional, you will also need to apply your own code of conduct and professional ethics and good practice, and follow professional regulatory requirements in relation to your duties as attorney.

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.

Although, under the Act, the code strictly applies only when you start exercising the functions of an attorney, for completeness it also covers the initial stages when someone is contemplating granting a power of attorney. Chapter 2 provides a guide for individuals considering appointing an attorney.

Chapters 1, 3, 6 and 7 are common to continuing and welfare attorneys. However chapter 4 and chapter 5 respectively deal with exercising continuing and welfare attorneys. In many cases a single individual will have both continuing and welfare powers, although the Act allows for the appointment of joint attorneys.

The code will also be of interest to anyone considering granting a power of attorney, or anyone else with an interest, to understand how an attorney is expected to act.

The code does not provide information on how to register powers of attorney. This is provided in the 'Guide to Powers of Attorney' produced by the Office of the Public Guardian (Scotland) ( OPG).

Terms used

• Throughout the code of practice the Adults with Incapacity (Scotland) Act 2000 is referred to as 'the Act';
• 'granter' refers to the person who has appointed someone to be his/her attorney;
• 'attorney' refers to the person who has been appointed to act on behalf of the granter;
• 'adult' refers to a person aged 16 or over with impaired capacity – also referred to in this code as the 'person' or 'individual', or 'granter' in the context where capacity has been lost;
• 'independent advocate' refers to someone employed by an independent advocacy service to support adults to express their views;
• 'carer' refers to a relative or friend who supports the adult without payment;
• '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;
• 'proxy' means a person appointed under the Act to make decisions or take actions on behalf of the adult. The term includes continuing and welfare attorneys, welfare and financial guardians, people authorised under intervention orders and withdrawers under the access to funds scheme;
• 'named person' means the person nominated by the adult under the Mental Health (Care and Treatment) Scotland Act 2003. The named person can represent the adult's interest and support him or her. This is automatically the primary carer where the person has not named someone else;
• 'relevant others' is used in the Code to summarise all those who the Act states must be consulted, where it is practical and reasonable to do so; and where the Act requires certain persons to be informed or 'intimated'. This includes: the nearest relative, the primary carer of the adult and the adult's named person (if there is one); any guardian, continuing attorney or welfare attorney of the adult who has powers relating to the proposed intervention; and any person whom the sheriff has directed should be consulted; any other person appearing to the person responsible for authorising or effecting the intervention to have an interest in the welfare of the adult or in the proposed intervention, where these views have been made known to the person responsible; any views expressed on behalf of the adult by a person providing an independent advocacy service;
• 'practising solicitor' is a solicitor holding a practising certificate issued in accordance with Part 2 of the Solicitors (Scotland) Act 1980 (c.46);
• ' Office of the Public Guardian (Scotland)' is referred to as the OPG ;
• ' Mental Welfare Commission' is referred to as the MWC .