Self Directed Supporting Capacity Matters

Introduction

• Adults with Incapacity (Scotland) Act 2000

• How will SDS and the Act intertwine?• Personalised legal services

Main resources under the Act

• Joint bank accounts

• Powers of Attorney • Access to Funds

• Guardianship & Intervention Orders

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5 General Principles

1. Benefit2. Minimum Intervention3. Wishes of the adult4. Consultation5. Encourage exercise of capacity

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Power of Attorney-What is it?

• Legal document whereby one person appoints another to make decisions and act for them either now or in the future

• Types– Continuing Power of Attorney–Welfare Power of Attorney– Continuing and Welfare Power of

Attorney

Who can grant a POA?

• Individual • Age 16 or over• Must have full legal capacity

What is capacity?

What is “Capacity”?

• Acting• Making• Communicating• Understanding• Retaining the memory

of DECISIONS

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Who can be an Attorney?

• Over 16 years old• Corporation but only re Financial POA• Bankrupt but only re Welfare POA• More than one Attorney• Substitute Attorneys

When is it helpful/necessary?

• To prepare for time when unable to make decisions for themselves

• Useful at diagnosis stage of progressive illness as can exercise control over future

• Where mental illness fluctuates can be used to cover periods of time person is unable to manage

Advantages

• Don’t need Court or OPG consent• Informal• Quick to prepare• Can be tailored to suit individual

requirements• CHOICE & CONTROL

Style Continuing Powers

• To demand, sue for and recover all, claims and sums of money due

• To open accounts, to operate accounts already opened

• Meet my general household and living expenses

• To buy or sell property

Style Welfare Powers

• Make decisions about my accommodation and care including where I should live, with whom I should live and what services I should receive

• Decisions about my social and cultural activities

• Decisions regarding my healthcare, to consent to care which is in my best interests and to refuse consent to care that is not in my best interest or doesn’t accord with my known wishes or feelings

Further welfare styles

• Normal day to day decisions including regarding my diet, dress and personal appearance and do whatever is necessary to preserve my personal dignity

• Possibly link in to advance directive i.e to do anything authorised by the Advanced Directive by me…dated….

In light of SDS….

• Specific authorisation for Attorney to accept direct payments?

Registration

• POA, Solicitors Certificate and Attorneys Acceptance of Appointment all get sent to OPG

• Registration fee £70• Must be registered to use• 1 week turnaround via EPOAR

Guardianship

• Most restrictive option• Powers – welfare and financial• Differences between POA

Who can apply for Guardianship?

• Anyone claiming interest in the property, financial affairs or personal welfare of an adult

• Where it appears adults is incapable of making decisions about finances, property or welfare and is likely to continue to be incapable and

• No other means under the Act would enable the adults interests to be safeguarded/promoted

Reports – basis of application

• Adults with mental disorder– Two Medical Practitioner Reports– Mental Health Officer Report

• Adults with physical condition resulting in inability to communicate– Two Medical Practitioner Reports– Chief Social Worker Report

Process

• Must be lodged in Court within 30 days of first Report

• Dual, joint or substitute appointments may be sought

• Must be parents, siblings or children of the adult

STATISTICS

Cause of incapacity Duration

AcquiredBrain Injury

Alcoholrelatedbraindisorder

Dementia Alzheimer’s

LearningDisability

MentalIllness

Other Totals

%

Up to and including 3 years 9 24 62 83 18 3 199 44%

Greater than 3 but including 5 years.

10 7 37 30 5 1 90 20%

Greater than 5 years. 0 0 12 6 1 0 19 4%

Indefinite 3 6 104 20 5 2 140 31%

Totals 22 37 215 139 29 6 448

% of all orders 5% 8% 48% 31% 6% 1% 100%

Primary causes of incapacity and duration of orders granted in local authority and private guardianship

Indefinite Order

Against•Potential for abuse•Deprivation of liberty•Contrary to ECHR

• For• Removes bureaucracy• Saves court time• Saves legal aid funds

Supervision of Financial Guardians

• PG can make orders or demands re the adults financial affairs or property

• Must submit full inventory of adults estate within 3 months of appointment

• Prepare draft management plan for management, investment and realisation of adults estate within 1 month of inventory

• Either approved or amended

Comparison

Power of Attorney• Capacity• Choice & Control• Welfare powers• Financial powers• Informal• £400

Guardianship• Lack of capacity• Restrictive• Welfare Powers• Financial Powers• Sheriff Court• LEGAL AID!

Other options?

• s13za Social Work Scotland Act 1968?– (a)Where LA decides adults needs call for

provision of a community care service and it appears to the LA that the adult is incapable re decisions about the service the LA can take steps they consider would help the adult benefit from the service

– (b) includes moving adult to residential accomodation

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• 01383 431101• 0141 889 0066• lornabrown@caritaslegal.co.u

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