Don't be Offended!
September 15, 2023
When lawyers talk to clients who want to give someone power of attorney (ability to make decisions for them), they need to make sure their client can do this on their own. It is recognised in the law that people must be able to choose someone to speak for them if they can’t. However, they have to be capable of making that choice.
The Law Society of Scotland has guidance on this which says that if a lawyer isn’t sure whether their client is capable of making decisions they should ask a qualified expert for help to make sure the client can give proper instructions.
Lawyers also need to check if someone is influencing their client or if they are vulnerable. In situations where someone is controlling or pressuring a vulnerable person it can be hard for them to make safe decisions. Lawyers need to understand how they make decisions and what might be making it difficult for them.
If we are speaking to you about making a power of attorney please don’t be offended if we say we want to learn more about your situation before we move forward. If you have a mental illness or disability, like dementia or learning disability, we might need to get at doctor’s report to check if you can make this decision. We might also talk to people who take care of you to understand your situation better. We are doing this to protect you and to make sure you fully understand and agree when you create a power of attorney.
However, having a mental illness or disability doesn't mean you can't make decisions or choose someone to make them for you. If you need more guidance on this, please don't hesitate to call us, and we can talk about your situation.
Imagine a loved one—your partner, parent, or child—suffering a life-altering event such as a brain injury from an accident, a diagnosis of dementia, or have a developmental condition like autism or a learning disability. Perhaps you or someone close to you is living with severe mental health challenges such as depression, schizophrenia, or bipolar disorder. Now, imagine that the authority to make critical decisions about their care, treatment, or even their freedom is out of your hands. For most people, the idea that their rights—or the rights of their loved ones—could be overridden is a terrifying prospect. But there is a safeguard: legal recourse. In Scotland, the legal aid system exists to ensure that everyone, regardless of financial circumstance, can access justice when they need it most. However, this safety net is fraying, leaving vulnerable individuals and families at risk of being failed by a broken system. The Reality of the Crisis In Scotland, Legal Aid is meant to cover the costs of accessing a solicitor for those seeking legal protection for a loved one by way of welfare guardianship, or representation in respect of mental health compulsory treatment and detention. It is also meant to cover the costs of accessing a solicitor to prepare for the future by way of preparation of a Power of Attorney for those who cannot afford to pay privately. Yet, the stark reality is that many solicitors are no longer undertaking legal aid work because it is unsustainable under the current system. Rates of remuneration for legal aid lawyers have stagnated, while the complexity and demands of the work have only increased. The Legal Aid Board ostensibly provides remuneration to solicitors undertaking legal aid work, but the process is fraught with challenges. Accounts submitted by solicitors are often subject to abatement, forcing them to argue and fight for payment for work already completed. This overly cumbersome and time-consuming process adds unnecessary strain to solicitors, who are already operating at significantly lower rates of pay compared to their privately funded counterparts. The result is a system that undervalues the essential work of legal aid practitioners and creates a disincentive for solicitors to take on such cases, potentially compromising access to justice for vulnerable individuals. This means fewer lawyers are available to take on cases that require expertise, empathy, and significant time investment. For individuals facing life-altering scenarios, this is not just an inconvenience; it’s a matter of life and dignity. Without legal aid solicitors, families are left with no choice but to pay exorbitant private fees—often ranging from £3,000 to £5,000—or go without representation entirely. For many, this cost is insurmountable, leaving them powerless to make or challenge decisions about care, treatment, or their fundamental rights. Who Is Affected? This crisis affects real people in profoundly personal and painful ways: Parents of children with learning disabilities may struggle to arrange the support their child’s needs when transitioning to adult services. Caregivers of individuals with dementia may face battles over guardianship, ensuring their loved one’s care aligns with their wishes. Patients held in hospital under mental health legislation may lose their freedom without proper legal representation to examine the legality of their detention. This list is not exhaustive and these are not hypothetical scenarios—they are lived realities for many families in Scotland. Why Access to Justice Matters Access to justice is the cornerstone of any fair and equitable society. Without it, the most vulnerable are left at the mercy of systems that may not act in their best interests. The legal aid system exists to ensure that no one is denied the ability to advocate for themselves or their loved ones because of financial hardship. When that system fails, society fails its most vulnerable members. What Needs to Change? To fix Scotland’s broken legal aid system, we need urgent action: Increased Investment: Legal aid rates must be revised to reflect the true cost of providing high-quality legal representation. Attracting New Talent: The legal profession must be incentivised to train and specialise in legal aid work, ensuring a steady pipeline of skilled solicitors. Public Awareness: Policymakers and the public must recognise the critical role of legal aid in upholding justice and equality. Conclusion The erosion of Scotland’s legal aid system is a silent crisis with devastating consequences for individuals and families across the country. Access to justice is not a privilege; it is a fundamental right. Without immediate intervention, more and more people will find themselves priced out of justice, forced to navigate complex and life-altering legal issues alone. I continue to offer legal aid at the present time, but the situation is becoming increasingly unsustainable. Rising costs, bureaucratic hurdles, and a lack of necessary reforms are making it difficult to provide this essential service to those who need it most. Without meaningful changes, I will be left with no choice but to step away from offering legal aid, despite my deep commitment to helping individuals navigate the justice system. This is not a decision I take lightly, but without support and improvements to the current system, it will become impossible to continue. I urge policymakers and stakeholders to recognise the urgency of this issue before access to justice is further eroded. We must demand better—for ourselves, for our loved ones, and for the society we aspire to be. A Scotland that values justice must also value those who make it accessible. The Law Society of Scotland are running a #LegalAidMatters campaign and you can show your support by adding your name to the ledger. Please take a moment to click the link and add your name—it only takes a few seconds. Sharing the link widely can make a huge difference. You never know when you, or someone you love, might be the one affected. Read a recent Law Society article here:- https://www.lawscot.org.uk/members/journal-hub/articles/legal-aid-matters/ Sign the pledge here:- https://www.lawscot.org.uk/for-the-public/what-a-solicitor-can-do-for-you/legal-aid/legal-aid-pledge/
It's essential to know that the Scottish Legal Aid Board (SLAB) plays a pivotal role in providing financial assistance. The good news is that SLAB assesses the provision of legal aid funding for Welfare Guardianship matters based on the merits of the proposed application only. This means that the financial circumstances of the adult in question or any proposed guardians are not taken into consideration when determining eligibility for legal aid.
In most cases, adults over the age of 16 are presumed to have the capacity to make their own medical decisions, including vaccinations. However, some individuals may lack the capacity to make such decisions due to mental disorders. The Adults with Incapacity (Scotland) Act 2000 defines the lack of capacity as the inability to make, understand, remember, communicate, or act on a decision due to mental disorder. Fortunately, many people with mental illnesses, learning disabilities, and related conditions can still provide consent for vaccination. With proper support and communication methods, they can make informed decisions about their health.
In a recent report published by the National Records of Scotland, alarming statistics have come to light regarding the increasing prevalence of Alzheimer's disease and other forms of dementia in the country. The data shows that in 2022, a total of 6,277 deaths were attributed to these debilitating conditions, marking a troubling increase of 231 deaths compared to the previous year. These figures reveal a growing concern for public health and the need for a deeper understanding of the challenges posed by dementia. The Demographics One of the most striking revelations from the report is that over 80% of these deaths occurred among individuals aged over 80. This age group seems to be particularly vulnerable to dementia-related conditions, emphasizing the pressing need for tailored healthcare services and support for our elderly population. Settings of Care The report also highlights the diverse settings in which these deaths occurred. A significant 64% of dementia-related deaths took place in care homes, while 22% occurred in hospitals, and 14% happened at home or in non-institutional settings. This distribution underscores the need for comprehensive care strategies that cater to the unique requirements of dementia patients, whether they are in institutional or home-based care settings. Regional Variations At the local health board level, the data revealed intriguing variations in mortality rates over the past five years. Regions such as Lanarkshire, Greater Glasgow and Clyde, and Forth Valley experienced the highest mortality rates, while the Borders recorded the lowest rate. These regional disparities hint at the importance of local healthcare systems and their ability to provide adequate support and resources for dementia patients and their families. The Need for Quality Dementia Care Given the growing impact of dementia in Scotland, it is imperative that individuals living with these conditions receive the highest quality of care throughout their journey, from diagnosis to end of life. Dementia can significantly impair a person's ability to make decisions about their own care, making it essential for loved ones to step in and advocate on their behalf. Guardianship Orders In some cases, it may become necessary to obtain guardianship orders to ensure the well-being and proper care of individuals living with dementia. These legal measures allow family members or close friends to make decisions on behalf of the affected individual when they are no longer able to do so themselves. If you find yourself in a situation where you believe a guardianship order may be necessary, seeking legal advice and guidance is crucial. Conclusion The statistics published by the National Records of Scotland are a stark reminder of the increasing burden of Alzheimer's disease and other dementias in our society. As we grapple with these challenges, it is incumbent upon us to prioritise research, support, and healthcare services that address the unique needs of individuals living with dementia, particularly among the elderly population. By working collectively to enhance the quality of dementia care and support, we can strive to improve the lives of those affected by these devastating conditions and provide the dignity and respect they deserve. If you have questions or concerns about guardianship orders or need guidance related to dementia care, do not hesitate to contact professionals who can provide valuable assistance during these difficult times.
"Meander for Mental Health" takes place on Saturday, 16th September. This is an excellent opportunity to explore the lovely grounds of Leverndale Hospital in Crookston and the surrounding green spaces. It's an all-day affair filled with free activities for people of all ages. Whether you're a community member, a patient or a family member, all are welcome! You can come alone or bring your friends and family along for the adventure. The festivities kick off at 11:00 am at the administration building (site entrance B) of Leverndale Hospital and wrap up at 4pm. There are guided walks at 11am and 2pm. Don't forget to sign up for free on the Meander for Mental Health Eventbrite page here https://www.eventbrite.co.uk/e/meander-for-mental-health-2023-tickets-685433037667?aff=oddtdtcreator . As a bonus, everyone who registers and completes a walk will receive a goodie bag with an event t-shirt. From September 10th to 16th, it's National Suicide Prevention Week, and Glasgow Health and Social Care Partnership is encouraging everyone to take care of their mental well-being by enjoying the outdoors in our local green spaces. Along the walking routes, you'll discover the beauty of Leverndale's upgraded pathways, green spaces, and stunning mural artworks. The 2pm walk even has a nature theme for nature enthusiasts. Plus, there's more to enjoy throughout the day, including a visit from a local fire engine, specialized bikes for all skill levels, face painting, and live music. Join us on September 16th for a day of outdoor fun, relaxation, and community support. It's a fantastic opportunity to take care of your mental health while enjoying the beauty of our surroundings. See you there!
In Scotland, the legal framework for addressing adult incapacity is primarily governed by the Adults with Incapacity (Scotland) Act 2000. This legislation sets out the principles and procedures to protect the welfare and finances of those who lack capacity. Key Aspects of the Act: Guardianship : Under this act, individuals or organizations can be appointed as guardians to make decisions on behalf of adults who are incapable of doing so themselves. There are two main types of guardianship: welfare and financial. Welfare Guardianship : Welfare guardians make decisions regarding personal welfare, including healthcare, living arrangements, and day-to-day care. The focus is on ensuring the person's well-being and best interests are upheld. Financial Guardianship : Financial guardians manage an individual's financial affairs, including paying bills, managing assets, and making financial decisions on their behalf. This safeguards their financial well-being. How Is Incapacity Determined? Incapacity is not assumed; it must be established legally. The Act requires a medical or psychiatric assessment to determine an individual's capacity. The assessment must be conducted by a registered medical practitioner or psychiatrist. It is crucial to follow proper procedures to ensure that the person's rights are respected. Safeguarding Rights and Freedom The Act emphasizes the importance of respecting the individual's rights and freedoms to the greatest extent possible, even when they lack capacity. Decisions should be the least restrictive option and made in their best interests. Regular Review and Oversight Guardianship orders are not permanent. They can be reviewed by the court to ensure they remain necessary and in the person's best interests. If the individual's capacity improves, the guardianship may be terminated or modified. Conclusion Facing adult incapacity can be challenging, but Scotland has established a robust legal framework to protect and support vulnerable individuals. The Adults with Incapacity (Scotland) Act 2000 prioritizes the best interests of those who lack capacity while respecting their rights and freedom. Understanding this legal framework is essential for individuals, families, and professionals involved in caregiving and advocacy for vulnerable adults in Scotland. It ensures that the right balance is struck between protection and autonomy in challenging circumstances.
The Mental Health (Care and Treatment) (Scotland) Act 2003 The cornerstone of mental health law in Scotland is the Mental Health (Care and Treatment) (Scotland) Act 2003 . This legislation outlines the principles and procedures governing the care and treatment of individuals with mental disorders. Key Aspects of the Act: Detention for Assessment and Treatment : The Act permits the detention and assessment of individuals who may pose a risk to themselves or others due to a mental disorder. This includes formal admission to psychiatric hospitals for evaluation and treatment. Mental Health Tribunals : Individuals subject to detention have the right to appeal to a Mental Health Tribunal. These independent bodies review detention cases to ensure that the person's rights are protected and that detention is justified. Compulsory Treatment Orders : The Act allows for Compulsory Treatment Orders (CTOs) in the community. This means that individuals can receive treatment while living in their own homes, rather than in a hospital setting, if it is deemed safe and appropriate. Advanced Statements : Individuals can create Advanced Statements outlining their preferences and wishes for treatment and care in case they lose capacity in the future. These statements are taken into account in decision-making processes. Consent to Treatment : The Act emphasizes the importance of informed consent for treatment whenever possible. In cases where an individual lacks capacity to give consent, decisions should be made in their best interests. Rights and Safeguards Mental health law in Scotland is designed to balance the need for treatment and care with respect for an individual's rights and dignity. Key rights and safeguards include: The right to appeal detention or CTO decisions to Mental Health Tribunals. The right to have a named person involved in the decision-making process. The requirement for regular reviews of detention cases. The emphasis on the least restrictive treatment options. Advocacy and Support Scotland provides advocacy services to individuals with mental health issues, ensuring they have access to information, representation, and support throughout the legal process. Advocates help individuals understand their rights and navigate complex legal proceedings. Conclusion Mental health law in Scotland is designed to strike a delicate balance between the need to provide care and treatment to those with mental disorders and the protection of their rights and dignity. The Mental Health (Care and Treatment) (Scotland) Act 2003, along with additional safeguards and advocacy services, ensures that individuals facing mental health challenges are treated with compassion, respect, and fairness within the legal system. Understanding these laws is crucial not only for individuals directly affected but also for their families, healthcare providers, and advocates. It ensures that mental health care is delivered in a way that promotes recovery, autonomy, and the overall well-being of individuals living with mental health conditions in Scotland.
