Continuing and welfare attorneys: code of practice

Chapter 1 - About the Adults with Incapacity (Scotland) Act 2000

Who the Act can help

1.1 The Act aims to help people (age 16 and over) who lack capacity to act or make some or all decisions for themselves. It covers people whose incapacity is caused by a mental disorder, such as severe dementia, learning disability, acquired brain injury, or severe mental illness. It also covers people who are unable to communicate due to a physical condition such as a stroke or severe sensory impairment. The Act supports their carers and others in managing and safeguarding the welfare and finances of the person.

1.2 The Act introduced arrangements for making decisions about personal welfare and managing the finances and property of individuals whose capacity to make or carry out specific decisions is impaired. It allows carers and others to have authority to do so on their behalf.

1.3 The law in Scotland generally presumes that adults (those aged 16 or over) are capable of making personal decisions for themselves and of managing their own affairs. That presumption can only be overturned on evidence that the person lacks capacity to make a decision. It is important to remember that having a diagnosis of, for example, dementia, does not mean, of itself, that the person is unable to make decisions for him/herself.

What incapacity means under the Act

1.4 The Act recognises that a person may be legally capable of some decisions and actions and not capable of others. The Act says that a person lacks capacity to take a particular decision or action when there is evidence that he/she is unable to do so.

1.5 For the purposes of the Act, 'incapable' means incapable of:

• acting on decisions; or
• making decisions; or
• communicating decisions; or
• understanding decisions; or
• retaining the memory of decisions

in relation to any particular matter due to mental disorder or inability to communicate because of physical disability.

1.6 This means that no one should be treated as unable to make or act on a decision unless all practical steps have been taken to assist him/her. How information is presented can help or hinder someone to make a decision. The person should not be considered as 'incapable' simply because he or she has a poor memory, short-term memory loss or difficulty in communicating his/her view. For example, someone with dementia may be able to consent to a decision but may not be able to remember a decision made earlier. He/she should be assisted with memory aids such as notes of previous discussions. Someone with a communication difficulty may be helped to overcome this for example, through the use of an interpreter, equipment to assist communication or the help of a specialist professional, e.g. learning disability social worker or speech and language therapist. For further information on communicating with the person see Annex 1.

How the Act can help

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

1.7.1 Power 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.

1.7.2 Access to Funds scheme – this is a way of accessing the adult's bank or building society account in order to meet his/her 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'.

1.7.3 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 his/her behalf over the long term. Financial guardianship may be appropriate where the person's finances are complex.

1.7.4 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.

1.7.5 Management of (care home/hospital) 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 arrangement is in place to manage these funds.

1.7.6 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. In addition, certain other health care practitioners, if accredited to do so, have authority to provide treatments which they are qualified to administer.

1.7.7 Medical Research involving adults who cannot consent is authorised subject to safeguards and conditions (For further details see Code of Practice for persons authorised to carry out medical treatment or research under Part 5 of the Act).

The Act aims to ensure that solutions focus on the needs of the individual for example: a person with dementia may be able to decide what sort of support he/she would prefer to help with day to day living, but be unable to manage his/her money. In such a case a financial intervention may be all that is needed. In other circumstances a combination of welfare and financial measures may be necessary.

1.8 Several people may be involved in supporting the adult through appointments under the Act or in other ways, e.g. as a DWP appointee. ^[2] They should communicate with each other in carrying out their responsibilities.

1.9 Details about the above measures under the Act are provided in the relevant codes of practice and guides available from the Office of the Public Guardian and the Scottish Government (see Annex 2 for details).

Co-existence of the Act with other measures

1.10 The Act does not authorise action in every matter where the adult may have impaired capacity. There are certain decisions which can never be made on behalf of a person who lacks capacity to make those specific decisions. This is because they are either so personal to the individual concerned, or governed by other legislation. For example consent to marriage or making a will are not matters where an intervention under the Act would be competent.

1.11 The Act co-exists with other possible legal measures that may be taken to support the adult, for example the setting up of a trust for the benefit of the adult.

Principles to be followed

1.12 The Act requires the following principles to be applied when deciding which measure will be most suitable for meeting the needs of the individual. The principles must also be used whenever decisions need to be made on behalf of the adult. The Act aims to protect people who lack capacity to make particular decisions, but also to support their involvement in making decisions about their own lives as far as they are able to do so.

Principle 1 – benefit

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

Principle 2 – least restrictive option

• Any action or decision taken should be the minimum necessary to achieve the purpose. It should be the option that restricts the person's freedom as little as possible.

Principle 3 – take account of the wishes 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 his or her views (for further guidance see Annex 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; 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

• Any guardian, continuing attorney, welfare attorney or manager of an establishment exercising functions under this Act shall, in so far as it is reasonable and practicable to do so, encourage the adult to exercise whatever skills he or she has concerning property, financial affairs or personal welfare, as the case may be, and to develop new such skills. While this is a requirement for the categories of appointee stated above, it represents good practice for all others with decision making or management powers.

Communicating with the person

1.13 Principle 3 means that you, as the attorney, must take account of the person's present and past feelings and wishes so far as possible. Some adults will be able to express their wishes and feelings clearly, even although they would not be capable of taking the action or decision which you are considering. For example, he/she may continue to have opinions about a particular item of household expenditure without being able to carry out the transaction personally.

1.14 In some cases special effort may be required to communicate with the person. This might mean using memory aids, pictures, non-verbal communication, advice from a speech and language therapist. (See Guide to Communication in Annex 1).

Deciding when a person needs the help of the Act

1.15 If you are unsure about the needs of the person you are concerned about or if the Act can help, it is advisable to contact the local authority social work department in the area where the person lives. The local authority has a duty to assess the needs of a person who may lack capacity due to a mental disorder or severe communication difficulty caused by a physical condition. You can also seek advice and information from the OPG on financial matters and from the Mental Welfare Commission ( MWC) on welfare matters. Specialist voluntary organisations may also be able to help (see Annex 2). A formal assessment of capacity is necessary in relation to applications under the Act.

Bodies involved in the regulation of attorneys

1.16 The position of attorney relies on a relationship of trust between the granter and the attorney. There is however a need to balance the voluntary nature of the arrangements with appropriate protection for the adult, and for third parties who conduct business with the attorney in place of the adult. The Act therefore provides for four bodies to be involved in the regulation of attorneys in the exercise of their functions. These are: the OPG, the courts, the local authority, and the MWC.

The Office of the Public Guardian (Scotland) ( OPG)

The Public Guardian has a wide range of powers under the Act, to:

• register powers of attorney, intervention and guardianship orders;
• authorise access to funds, register withdrawers and issue certificates;
• supervise continuing (financial) attorneys where ordered to do so by the sheriff;
• supervise financial guardians and withdrawers;
• investigate complaints against anyone authorised to manage the finances of an adult, including continuing attorneys;
• provide information and advice (non-legal) on financial matters in relation to the Act.

The Mental Welfare Commission ( MWC)

The Commission has an important role in protecting the interests of adults with incapacity due to mental disorder. It provides a range of guides for carers, service users and professionals and a freephone helpline – see Annex 2.

The Local Authority

Local authorities have a duty to assess the needs of people who may lack capacity to make some or all important decisions for themselves and to provide information to carers who have been appointed as attorneys or guardians. They have a duty to investigate complaints against welfare attorneys and, in certain circumstances, the court can order the local authority to supervise a welfare attorney.

The Court

Where a serious complaint is upheld the court can reduce or remove the powers granted to an attorney and the attorney may be replaced by the appointment of a guardian. The court is also responsible for the appointment of financial and welfare guardians.

Provisions relating to nearest relative

1.17 Under section 4(1) of the Act it is possible for anyone, (including the adult him/herself), who has an interest in the adult's property, financial affairs or personal welfare to apply to the sheriff to have the nearest relative displaced, or to have information withheld from the nearest relative. Such applications cannot be made in advance of any incapacity.

Displacement or withholding of information from nearest relative

1.18 On an application the court may, having regard to the principles and being satisfied that to do so will benefit the adult, make an order that:

• certain information shall not be disclosed, or intimation of certain applications shall not be given, to the nearest relative of the adult;
• the functions of the nearest relative of the adult shall, during the continuance in force of the order, be exercised by a person, specified in the application, who is not the nearest relative of the adult but who:
  • is a person who would otherwise be entitled to be the nearest relative in terms of this Act;
  • in the opinion of the court is a proper person to act as the nearest relative; and
  • is willing to so act; or
  • no person shall, during the continuance in force of the order, exercise the functions of the nearest relative.

1.19 In relation to your role as attorney, the granter may have discussed with you his/her position with regard to his or her nearest relative – that there has been no contact for a long time and would not wish it in the future; or the circumstances may arise that the nearest relative is posing a barrier to your carrying out your duties as an attorney. In either case you may wish to apply to the court to have certain information withheld from the nearest relative.

1.20 Alternatively, you as attorney will need to be aware if any order has been made displacing the nearest relative or if anyone else has been ordered by the sheriff to exercise the functions of nearest relative when you come to apply the principles to the exercise of your powers. You can get this information from the Public Guardian.

Legal Aid

1.21 An adult, someone authorised to act on his or her behalf under the Act, or anyone claiming or having an interest in the adult's welfare or affairs may be able to apply for legal aid. For example, costs may be incurred in making an application to the courts or in seeking legal advice. Two sorts of legal aid are available under the Adults with Incapacity Act:

• Advice and Assistance

  will be available, subject to the statutory financial eligibility test being satisfied, to enable people to seek advice from a solicitor on any aspect of the Act. It is the solicitor who applies the financial eligibility test in respect of applications for legal aid for Advice and Assistance. Where the applicant is someone other than the adult, the financial eligibility test will be assessed on the resources of the adult and not the applicant.

• Civil Legal aid

  will be available without a means-test in respect of applicants for an intervention or guardianship order which includes welfare powers or a mix of welfare and financial powers. In this case the solicitor applies to Scottish Legal Aid Board ( SLAB) who decides if the application meets the eligibility criteria. Where there is no welfare element and the application is for financial powers only, SLAB will look at the income and capital of the adult.

1.22 The SLAB website www.slab.org.uk provides information by region on solicitors registered for legal aid work. A fact sheet on the Adults with Incapacity Act and legal aid is available at: http://www.gov.scot/Topics/Justice/Civil/awi.

Limitation of liability

1.23 Section 82 of the Act provides that no liability shall be incurred by a guardian, a continuing attorney, a welfare attorney, a person authorised under an intervention order, a withdrawer or the managers of a residential establishment for any breach of any duty of care or fiduciary duty owed to the adult if he, she or they have:

acted reasonably and in good faith and in accordance with the principles; or failed to act and the failure was reasonable and in good faith and in accordance with the principles.

1.24 This is a crucial provision which emphasises the importance of anyone exercising powers under the Act being fully familiar with the principles and applying them properly to decisions and actions taken.

How does the Act protect the adult from abuse?

1.25 The Act provides a number of safeguards for adults through the roles and functions of the statutory bodies described above and in other ways. These include checks on the suitability of the proposed guardian, intervener or withdrawer; the displacement of the nearest relative as described in paragraphs 1.18- 20: a formal assessment of the adult's capacity; and the registration of all appointments with the OPG. The Act makes provision for investigations and where complaints are upheld, a range of measures may be taken. In serious cases the OPG, MWC and/or local authority will refer the matter to the sheriff court.

It is an offence for anyone exercising welfare powers under the Act to ill treat or neglect an adult. The penalties for someone found guilty on summary conviction of the offence under the Act are up to 6 months imprisonment or a fine of up to £5000. Someone convicted of the offence on indictment may be imprisoned for up to 2 years or given an unlimited fine.

For further information and advice

1.26 If you are unsure about the needs of the person you care for and whether the provisions of the Act will help, there are several sources of help: the local authority social work department in the area where the adult lives; the Citizen's Advice Bureau, or a specialist voluntary organisation. The OPG will provide advice on financial matters in relation to the Act and the MWC has a helpline to deal with welfare queries where the person has a mental disorder. ( Annex 2, Useful Addresses). You can also consult the Scottish Government's website at: http://www.gov.scot/Topics/Justice/Civil/awi.