The Adults with Incapacity (Scotland) Act 2000 provides a framework for decisions relating to property, financial affairs, personal welfare and medical treatment to be made on behalf of adults who lack the capacity to do so themselves.
The Act provides the following ways for safeguarding a person's welfare and managing his/her financial affairs or both. 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.
The Act does not authorise action in every matter where the person may have impaired capacity. Certain decisions can never be made on behalf of a person who lacks capacity, for example, consent to marriage or making a will. The Act imposes other restrictions on what a proxy is able to do, for example, a welfare attorney or guardian or intervener cannot place the person they are acting for in a mental hospital against his/her will or consent to certain treatments on his/her behalf.
Power of attorney (Part 2 of the Act). 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. One or more persons can be appointed. All powers of attorney under the Act must be registered with the Public Guardian.
Access to Funds scheme (Part 3 of the Act). This is a way of accessing the adult's bank or building society account/s in order to meet his/her living costs. This scheme is best suited to 'steady state' estates where the income and outgoings are easily regulated. Proactive administration of money is not permitted under this scheme, e.g. management of investments. An application can be made to the OPG by an individual (normally the person's main carer/other family member) or organisation.
Guardianship order (Part 6 of the Act). Guardianship can cover property and financial matters or personal welfare, including health, or a combination of these. It is likely to be suitable where the person has long-term needs in relation to these matters, and has lost, or has never had, capacity to take decisions or action on these matters for him or herself. An application may be made to the sheriff court by individuals, or by the local authority where no one else is applying and the adult has been assessed as needing a guardian.
Intervention order (Part 6 of the Act). This would normally be suitable where there is a single action or decision to be taken on behalf of the adult. This could, for example, be a financial or property transaction or a legal action on behalf of the adult such as signing a tenancy agreement. Intervention orders can cover both financial and welfare matters. An application may be made to the sheriff court by an individual or local authority.
Management of (care home/hospital) residents' funds (Part 4 of the Act). The Act allows authorised care establishments and hospitals to manage a limited amount of the funds and property of residents who are unable to do this for themselves and have no one else available to do so. A certificate of authority may be granted by the Supervising Body; the Health Board in the case of NHS patients and the Care Commission in other cases.
Part 4 is usually used, by the Health Board, for individuals with relatively small amounts of money who have no one else to lawfully manage their financial affairs. Other possible interventions must be considered before a certificate from a medical practitioner can be sought to declare and adult incapable of managing their own financial affairs. Items can be purchased for the adult’s benefit such as personal toiletries, media items, clothes, holidays and other items which are not part of the regular care service.
Medical treatment decisions (Part 5 of the Act). The Act allows treatment to be given to safeguard or promote the physical or mental health of an adult who is unable to consent. The principles apply to medical treatment decisions as to other areas of decision-making. Where a welfare attorney or guardian has been appointed with health care decision-making powers the doctor must seek his/her consent where is it practicable and reasonable to do so. Where the adult has no proxy a doctor is authorised to provide medical treatment, subject to certain safeguards and exceptions.
More information on this Act can be accessed at the Scottish Government website.