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.
Guidance on Guardianship Orders and Powers of Attorney
Power of Attorney
A Power of Attorney is prepared by you and allows you to plan how you would like another person to act on your behalf in the future, should you become incapable of making your own decisions. You can nominate a person as your Attorney to allow them to deal with money and property, to make decisions regarding your health or personal welfare matters or both. We can provide advice and guidance on what should be included in your Power of Attorney and thereafter prepare the written documentation. We also arrange for the Power of Attorney to be registered with the Office of Public Guardian in Scotland.
Legal Aid is often available for preparation of a Power of Attorney. We are happy to provide a no obligation service to assess your eligibility for free legal assistance. We also offer a fixed private fee for occasions when Legal Aid is not available.
Guardianship Orders
A guardianship order is granted by the court and provides authority to a person to make decisions on behalf of another where they are considered to be an ‘adult with incapacity’. An adult with incapacity is a person over the age of 16 who is not able to look after their own affairs due to mental disorder or inability to communicate because of physical disability. The law states that an adult will be deemed incapable to manage their affairs if they are incapable of acting on or making decisions, communicating decisions, understanding decisions or retaining memory of decisions.
There are three types of guardianship order:-
Legal aid is often available in respect of an application for guardianship. Eligibility for legal aid is based on the adult's income and assets and not the prospective guardian's. Civil Legal Aid is available where welfare powers are sought without the need for any financial assessment.
A guardianship order must have some benefit to the adult and be the least restrictive option available. For example, there are alternative methods available to manage an incapable adults finances including DWP Appointeeship and Access to Funds. Details of these can be found on the website of the Office of the Public Guardian Scotland (see link on our website).
We are happy to offer informal advice as to whether a guardianship order will help the adult in question and that it is appropriate for their circumstances. We can also carry out a no obligation assessment on eligibility for legal aid.
Intervention order
An intervention order is granted by the court and gives authority to a person to perform a one-off action on behalf of an adult with incapacity. This could include signing legal documents, including tenancy agreements, or selling the adults house. An intervention order lasts until the action is complete. If powers are required on an ongoing basis then a guardianship order may be more appropriate.
Legal aid is often available to apply for an intervention order.
Guidance on Mental Health Law
Legal powers can be used where someone is receiving treatment for a mental illness or disorder but do not agree with that treatment. Decisions can be made on their behalf as to when and how treatment is delivered, Aand when they can be kept in hospital against their will. There are a number of safeguards in place to ensure that where legal powers are used, an individual’s rights are protected.
Emergency Detention
Where a doctor recommends that someone’s condition should be assessed they can be held in hospital for up to 72 hours (3 days). During this time, they should not be given any treatment unless they agree with it, unless the treatment is considered to be required urgently. There is no right to appeal against emergency detention.
Short Term Detention
When further time is required for assessing and treating a suspected mental illness or disorder, a person can be detained in hospital for up to 28 days (4 weeks). A legal order known as a Short Term Detention Certificate (STDC) is issued if a Psychiatrist and a Mental Health Officer both agree that a patient meets certain legal criteria.
A STDC can be challenged by a patient or their Named Person or next of kin in certain circumstances. This is done by way of an appeal to the Mental Health Tribunal for Scotland. An independent Tribunal will be convened and panel of three members, consisting of a legal member (lawyer), medical member (psychiatrist) and general member, will hear evidence and decide whether the detention should continue. Legal aid is available to the patient and their Named Person irrespective of finances for any Tribunal proceedings and it may be possible to arrange for an independent psychiatric assessment.
Compulsory Treatment Order
Compulsory Treatment Orders impose measures to either detain a patient in hospital for the purpose of receiving treatment or to compel treatment to be received in the community.
An application for a Compulsory Treatment Order is made by a Mental Health Officer at the request of a treating psychiatrist. The Mental Health Officer will prepare a report and obtain two medical reports. A Mental Health Tribunal will be convened to hear the application. Legal aid is available to the patient and their Named Person irrespective of finances for any Tribunal proceedings and it may be possible to arrange for an independent psychiatric assessment.
Compulsory Treatment Orders can last up to six months and must be revoked when a psychiatrist comes to a view that the individual no longer meets certain legal criteria. If the Order is still in place after three months a patient or their Named Person can appeal to the Mental Health Tribunal and request that the Order be reviewed.
Court Imposed Orders
Compulsion Orders are imposed by a Sheriff at Court following a criminal case. These are initially made for a period of six months and a Tribunal will be fixed thereafter to review it. A Patient or their Named Person can oppose the extension of the Order and is entitled to legal representation.
Compulsion Order and Restriction Orders are granted by the court for an indefinite period of time. These will be reviewed annually by a patient’s psychiatrist and the Scottish Government. A Patient and their Named Person can also appeal against the orders.
Legal aid is available irrespective of finances for any Tribunal proceedings and it may be possible to arrange for an independent psychiatric assessment.
Links to other relevant sites
Office of the Public Guardian Scotland - https://www.publicguardian-scotland.gov.uk/
Self Directed Support Scotland - https://www.sdsscotland.org.uk/
Mental Welfare Commission for Scotland - https://www.mwcscot.org.uk/
Mental Health Tribunal for Scotland – https://www.mhtscotland.gov.uk/mhts/Home/Welcome_to_the_Mental_Health_Tribunal
Where we Operate
Our main areas of operation are Glasgow City, Glasgow Southside, North Glasgow, Paisley, Hamilton, East Kilbride, Coatbridge, Uddingston, Motherwell, Wishaw, Cumbernauld, Dumbarton, Stirling and Falkirk. If you are outwith any of these areas please do not hesitate to contact us to check our availability to travel to you.